Terms & Conditions

1. Terms and Hire Forms

(a) These terms and conditions (Terms) together with any Hire Form (together, the Agreement) govern the terms of the hire of Equipment between you (the Customer, you, or your) and The Trustee for The AandA Trust trading as ‘Soil’d Yourself’ ABN 38 479 157 942 (the Hirer, we, us or our), and apply whenever you hire goods or acquire associated services from the Hirer.

(b) These Terms may be updated by the Hirer from time to time. The latest version of the Terms will be specified at the top of this document. The Terms that will apply to a specific Hire Form are those that were current at the time the Hire Form was accepted by the Customer.

2. How to read this Agreement

In this Agreement, capitalised terms have the meaning they are given by the phrase that:

• (a) immediately precedes the brackets in which a capitalised term appears for the first time in bold;
• (b) appears in the corresponding row of the table in the Hire Form to the right of a bolded term; or
• (c) appears in clause 21 of the Terms.

2.1 Interpretation

In this Agreement:

• (a) no provision of this Agreement will be construed to the disadvantage of a party merely because that party was responsible for preparing this Agreement or including the provision in this Agreement;
• (b) headings are for ease of reference only and shall not impact interpretation;
• (c) an obligation or liability assumed by, or a right conferred on, two or more parties binds or benefits them all jointly and severally;
• (d) all monetary amounts are expressed in AUD; and
• (e) the parties must perform their obligations on the dates and times fixed by reference to Brisbane, Queensland.

2.2 Precedence

In the case of any conflicts or inconsistencies between the Terms and the attached Hire Form, the following shall apply:

• (a) Subject to clause 2.2(b), these Terms will prevail to the extent of any conflict or inconsistency.
• (b) However, where a Hire Form contains ‘Special Conditions’ that expressly amend or vary specific provisions of these Terms, the 'Special Conditions' shall take precedence over these Terms to the extent of any conflict or inconsistency, but only to the extent necessary to give effect to the amendment or variation.

3. Legally binding agreement

• (a) These Terms, together with any Hire Form, apply whenever the Customer hires or uses the Hirer’s Equipment or acquires associated services from the Hirer.
• (b) By booking the Equipment, you are deemed to have read and accepted these Terms and enter into a binding agreement with the Hirer. You should read these Terms carefully and in full to ensure you understand their effect.
• (c) You agree that the details in the attached Hire Form are an essential part of this Agreement. The Hire Form contains information about the Equipment being rented, the rental rates, the duration of the rental, and any other terms we've agreed upon. You acknowledge that the information contained in the Hire Form is binding and forms part of this Agreement.

4. Term

This Agreement commences on the date that the Hire Form is accepted by the Customer, and continues until:

• (a) the Equipment is returned in full; or
• (b) all Fees due to the Hirer under this Agreement are paid by the Customer, whichever occurs later.

5. Hirer’s Obligations

The Hirer will provide:

• (a) exclusive use of the Equipment to the Customer for the duration of the Hire Period; and
• (b) the Equipment to the Customer in good, working order.

6. Pre-Hire Obligations

The Customer must:

• (a) obtain all permits and licences necessary to carry out any work requiring use of the Equipment and/or at the Hire Location;
• (b) obtain current information from relevant authorities about any infrastructure networks or requirements at the Hire Location (i.e. Dial Before You Dig);
• (c) read and/or watch any Training Materials supplied by the Hirer prior to using any equipment; and
• (d) provide the Customer’s valid driver’s licence for inspection in order to confirm the booking.

7. Customer’s Obligations

7.1 Use of Equipment

The Customer must:

• (a) unless specifically permitted by the Hirer in writing, not permit a person that is not the Customer or the Hirer to use the Equipment;
• (b) not permit a person under the age of 18 to use the Equipment;
• (c) not use or allow the Equipment to be used while under the influence of drugs or alcohol;
• (d) ensure the Equipment is used only at the specified Hire Location;
• (e) always wear appropriate clothing and personal protective equipment when using the Equipment;
• (f) not use the Equipment in a manner that will or is likely to endanger another person;
• (g) use the Equipment for its intended purpose, on suitable terrain and in a manner that is within the Equipment’s reasonably expected capabilities and limitations;
• (h) use the Equipment in a manner that complies with all applicable Road Laws, rules or regulations and take full responsibility for any traffic infringements or fines received by the Customer in respect of the Equipment during the Hire Period;
• (i) not use the Equipment in a manner that is likely to damage the Equipment, which includes but is not limited to not using the EcoSpreader on clay, soils not free from clumps or debris, or mulches;
• (j) use the Equipment in accordance with the Training Materials, operating requirements, recommendations and instruction manuals provided to the Customer;
• (k) not use or allow the Equipment to be used in a manner that is reasonably likely to cause harm to the Hirer’s reputation;
• (l) immediately notify the Hirer of any breakdown of or damage to the Equipment.

7.2 Collection, Care and Return of Equipment

(a) The Customer must:

• (i) ensure the Equipment is securely stored at all times when not in use;
• (ii) use the Equipment as directed in the Training Materials or other guidance;
• (iii) not modify, tamper with or otherwise damage or interfere with the Equipment;
• (iv) not deface or remove any safety notifications, warnings, identifying marks, plates or numbers from the Equipment.

(b) The Customer must:

• (i) unless otherwise agreed by the Hirer in writing, collect the Equipment on the Collection Date and Collection Time from the Hirer Address;
• (ii) pay the Total Hire Fee and any applicable Service Fee and/or Delivery Fee prior to the Collection Date and Collection Time;
• (iii) unless otherwise agreed by the Hirer in writing, return the Equipment to the Hirer on or prior to the Return Time on the Return Date and at the Hirer Address in good, working order, and in the same condition as at the Start Date, less reasonable Fair Wear and Tear;
• (iv) clean and decontaminate the Equipment prior to returning the Equipment.

(c) If the Customer has not paid the Total Hire Fee and any applicable Service Fee and/or Delivery Fee as at the Collection Date and Time, the Customer agrees that the Hirer may cancel the Agreement, and the Customer will pay the Cancellation Fee as outlined in clause 13.4(b).

(d) If the Customer does not clean and decontaminate the Equipment in accordance with clause 7.2(b), the Customer agrees:

• (i) to pay the Cleaning Fee set out in the Hire Form; or
• (ii) if the Hirer is required to outsource cleaning due to the contamination of the Equipment being such that a general high pressure clean will not remove the contamination, to pay reasonable cost of cleaning and decontaminating the Equipment within 7 days upon receipt of an invoice from the Hirer;
• (iii) to be liable for any additional Fees incurred while the Equipment is being cleaned by the Hirer.

8. Maintenance and repairs

• (a) Where the Equipment requires maintenance or where the Equipment breaks down or becomes faulty during the Hire Period (Faulty Equipment), the Customer must promptly contact the Hirer and, as directed by the Hirer, either:
  • (i) return the Equipment to the Hirer to carry out such maintenance as necessary; or
  • (ii) allow the Hirer access to the Equipment at a time agreed by the parties for the Hirer to carry out the required maintenance and/or repairs.
• (b) If, in relation to Faulty Equipment, the Hirer determines that the Faulty Equipment requires repairs not as a result of a breach of these Terms by the Customer then:
  • (i) the Hirer will carry out such repairs as necessary; or
  • (ii) if the Faulty Equipment is not capable of repairs, the Hirer will provide the Customer with replacement Equipment for the remainder of the Hire Period (Replacement Equipment).
• (c) If Replacement Equipment is not available, the Hirer will refund the Fees on a pro rata basis for any time that it cannot supply the Equipment for the Customer during the Hire Period.

9. Delivery & Services

9.1 Delivery

If Services include delivery and/or pick up of the Equipment by the Hirer:

• (a) delivery is to occur on the date and at the time set out in the Services Date row of the Hire Form;
• (b) delivery is to the Hire Location only and cannot be refused by the Customer;
• (c) the Customer must ensure that the Equipment is ready for pick up at the time and on the date set out in the Collection Date and Collection Time rows of the Hire Form.

9.2 Services

• (a) If Services include any services other than delivery of the Equipment, the Hirer will provide Services at the Hire Location and on the Services Date only.
• (b) The Hirer will exercise reasonable skills and care when providing the Services and will ensure they are fit for any purpose agreed by the parties but cannot guarantee that the Services will achieve a specific outcome not specified in the Hire Form.
• (c) The Customer must ensure that the premises at the Hire Location where the Services are to be provided are clean, free from obstacles and contamination, comply with all applicable work health and safety laws and, unless agreed otherwise in writing, that the Customer is present at the Hire Location when the Services are provided.
• (d) If the Customer fails to comply with clause 9.2(c), the Hirer will be entitled not to provide the Services and charge the Customer the Cancellation Fee.

10. Lost, damaged or stolen Equipment

In the event that the Equipment breaks down, becomes unsafe to use, is lost, stolen or damaged during the Hire Period, the Customer must:

• (a) immediately stop using the Equipment in case of damage, unsafe use or breakdown;
• (b) immediately notify the Hirer and provide all relevant details of the incident;
• (c) take all necessary steps to prevent injury occurring to persons or property and to prevent further damage to the Equipment;
• (d) in the case of theft, report the incident to police without delay and promptly provide the Hirer with a written police report;
• (e) refrain from repairing or attempting to repair the Equipment without prior written consent from the Hirer.

Subject to clause 8, the Hirer reserves the right to hold the Customer liable for any damaged, lost or stolen Equipment, including the right to:

• (a) repair the damaged Equipment at the Customer’s cost; or
• (b) where the Equipment is lost or stolen, or the costs of repairs would exceed the cost of replacement, charge the Customer for the full cost to replace the Equipment.

11. Equipment Ownership

• (a) Subject to clause 11(d), the Hirer retains ownership of and title over the Equipment at all times. The Customer is entitled to use of the Equipment as a bailee only.
• (b) The Customer is not entitled to offer, sell, assign, sublet, charge, mortgage, pledge or create any form of security interest over, or otherwise deal with Equipment in any way.
• (c) The Equipment will not be deemed to be a fixture under any circumstances.
• (d) The Hirer may hire or lease Equipment from a third party. The third party will retain title and ownership over any Equipment hired from a third party in these circumstances.

12. Personal Property Securities Register

• (a) The Customer acknowledges and agrees:
  • (i) that this Agreement constitutes a security agreement and a purchase money security interest (PMSI) for the purposes of the Personal Properties Securities Act 2009 (Cth) (PPSA); and
  • (ii) a security interest is taken in all Equipment previously supplied by the Hirer to the Customer (if any) and all Equipment that will be supplied in the future by the Hirer to the Customer during the parties’ relationship.
• (b) The Customer agrees to take any action (including obtaining consents, signing or producing any further documents, and/or providing any further information) which the Hirer may request and deem necessary for the purposes of:
  • (i) ensuring that the security interest is enforceable, perfected and otherwise effective; and/or
  • (ii) enabling the Hirer to apply for any registration, complete any financing statement, financing change statement or give any notification, in connection with the security interest; and/or
  • (iii) enabling the Hirer to exercise its rights in connection with the security interest.
• (c) The Customer waives any rights it may have in relation to the receipt of notices under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA, and under sections 142 and 143 of the PPSA.
• (d) The Hirer and the Customer agree that sections 96 and 117 of the PPSA do not apply to this Agreement and have no effect.
• (e) The Hirer and the Customer agree that neither party will respond to a request for information disclosing information of the kind referred to in section 275(1) of the PPSA.
• (f) The Customer agrees to not authorise, or permit any other person to authorise, the disclosure of such information of the kind referred to in section 275(1) of the PPSA.

13. Insurance

13.1 Hirer’s insurance

• (a) The Customer agrees that:
  • (i) whilst the Hirer may maintain one or more insurance policies, the Hirer is under no obligation to insure the Customer or their use of the Equipment and that the Customer is encouraged to secure its own insurance;
  • (ii) the Customer must not do anything which could reasonably be expected to render any Insurance Policy held by the Hirer invalid.
• (b) The Customer agrees to cooperate and do all things reasonably necessary to:
  • (i) give effect to the Hirer's insurance; and
  • (ii) in the event of a Claim on the Hirer’s insurance, assist the Hirer by providing any assistance or information required to process or complete such a Claim.
• (c) The Customer agrees that the Hirer’s insurance policies may be invalidated in the following circumstances:
  • (i) where the Customer has failed to take reasonable care of the Equipment, or use the Equipment as directed;
  • (ii) where the operator of the Equipment does not hold a valid and appropriate licence to operate the Equipment;
  • (iii) where the operator is under the influence of drugs or exceeds the legal blood alcohol limit at the time of operating or supervising the Equipment;
  • (iv) where the Equipment has been intentionally damaged during the Hire Period;
  • (v) where damage to the Equipment occurs while the Equipment is being driven or towed on any unsealed road or a road that is not classified as a public road;
  • (vi) where the damage to the Equipment is caused as a result of overloading;
  • (vii) where the damage is caused by flash flooding or any form of water damage;
  • (viii) where the damage is caused due to a collision with a bridge, car park structure, awning, gutter, tree, or any other overhead structure or object due to insufficient clearance; or
  • (ix) arising as a result of a Claim which has been made by or against a third party.

14. Fees and payment terms

14.1 Fees

The Customer agrees that:

• (a) unless agreed otherwise in writing, the Fees are payable in advance of the Customer taking possession of the Equipment;
• (b) the Hirer may terminate this Agreement without further notice if the Customer fails to pay the Fees; and
• (c) where the Customer incurs additional Fees after taking possession of the Equipment, including any cleaning fees in accordance with clause 7.2(d), the Customer will settle the balance of the Fees within 48 hours of receiving an invoice for such Fees from the Hirer.

14.2 Security

• (a) The Customer will provide the Hirer with valid credit card details prior to the Customer taking possession of the Equipment.
• (b) The Hirer reserves the right to debit the Customer’s credit card in accordance with clause 14.3(b).

14.3 Late fees

• (a) In the event the Customer fails to return the Equipment by the Return Date, the Hirer reserves the right to charge the Late Fee up to an amount equivalent to the value of the Equipment (Maximum Late Fees).
• (b) The Customer consents to the Hirer deducting the Late Fee from the credit card or bank account provided by the Customer upon return of the Equipment or the Maximum Late Fees being reached, whichever occurs first.

14.4 Cancellation Fee

The Hirer reserves the right to charge the Cancellation Fee in the event the Customer:

• (a) returns the Equipment before the end of the Hire Period; or
• (b) cancels their booking less than 3 Business Days prior to the commencement of the Hire Period.

14.5 GST

• (a) You acknowledge that the Fees are exclusive of any GST.
• (b) If GST is payable in respect of a supply made under or in relation to this Agreement, the recipient must pay to the supplier an amount equal to the GST payable on the supply (GST Amount). The GST Amount is payable by the recipient in addition to and at the same time as any consideration for the supply, provided the supplier has given the recipient an Invoice.

15. Privacy

We will collect, use and disclose any personal information you provide us when accessing or using the Platform in accordance with our Privacy Policy. For more information on our information collection and handling practices, please view our Privacy Policy.

16. Intellectual Property

• (a) The Hirer owns or is the licensee of all Intellectual Property Rights in the Hirer’s business.
• (b) The Customer understands and agrees that no rights to the Hirer’s Intellectual Property Rights are created as a result of this Agreement.
• (c) The Customer is not permitted to use the Hirer's Intellectual Property Rights in any manner without the prior written consent of the Hirer.

17. Exclusions and limitation of liability

• (a) The Customer agrees that use of the Equipment is at its own risk and that it is solely responsible for:
  • (i) any death, personal injury or disability to itself or a third party, except to the extent that such death, injury or disability is caused by the Hirer’s negligence; and
  • (ii) theft, loss, damage, fines, fees, costs or claims, incurred directly or indirectly, in connection with the Customer’s use of the Equipment.
• (b) To the fullest extent permitted by law:
  • (i) the Hirer is not liable to the Customer or anyone else for any loss or damage the Customer may suffer or incur in connection with the Customer’s use of the Equipment, even if the Hirer has been advised of the possibility of such loss; and
  • (ii) the Hirer’s total liability under or in connection with this Agreement in respect of all claims will not exceed the fees paid by the Customer to the Hirer for the hire of the Equipment and/or performance of Services in the three months immediately preceding the event giving rise to the claim.
• (c) To the fullest extent permitted by law, we exclude liability for Consequential Loss and all representations, warranties or terms (whether express or implied) other than those set out in these Terms.
• (d) Pursuant to s64A of Schedule 2 of the Australian Consumer Law, this clause 17(d) applies in respect of services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption. Our liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by s51 to s53 of the Australian Consumer Law) is limited at our option to:
  • (i) the re-supply of the Equipment;
  • (ii) in the case of Services, supplying the Services again, or the reasonable payment of the cost of having the Services supplied again; or
  • (iii) refunding the Fees to the Customer on a pro rata basis for any period the Hirer was unable to use the Equipment during the Hire Period.

18. Indemnity

• (a) You agree to indemnify us for all losses, damages, liabilities, claims and expenses (including reasonable legal costs) incurred by us arising out of or in connection with your use of the Equipment, your breach of the Terms or any rights of third parties, except to the extent we directly caused or contributed to the loss, damage, liability, claim or expense. This includes but is not limited to any Claim against the Hirer and/or its directors, officers and employees.
• (b) We reserve the right, at our own expense, to assume exclusive control of any matter for which you are required to indemnify us, and you agree to provide assistance at your expense for the purposes of defending and managing all such claims as is reasonably requested by us.

19. Recovery of Equipment

• (a) If the Customer is in breach of the Agreement, or the Agreement has been terminated and the Customer fails to return the Equipment to the Hirer, the Hirer may take all reasonable steps to recover the Equipment, including legal action, and/or entering the Hire Location and/or the Customer’s premises.
• (b) The Customer provides express consent to the Hirer entering the Hire Location and/or the Customer’s premises for the purposes of recovering the Equipment.

20. Termination

20.1 Termination for convenience

• (a) Either party may terminate this Agreement at any time by giving notice to the other party.
• (b) Where the Customer terminates this Agreement under clause 20.1(a), the Hirer reserves the right to charge the Cancellation Fee in accordance with clause 14.4.

20.2 Termination for breach

• (a) Either party may terminate this Agreement with immediate effect if the other party breaches a term of this Agreement.
• (b) Where this Agreement is terminated in accordance with clause 20.2(a) by the Customer, the Hirer will refund the Fees to the Customer on a pro rata basis for any period of time remaining in the Hire Period.

20.3 Consequences of Termination

The Customer must immediately return the Equipment to the Hirer upon Termination of the Agreement.

21. General

21.1 Force Majeure

• (a) If a Force Majeure Event prevents either party from complying with its obligations under this Agreement (other than an obligation to pay money and provide requisite notice) the affected party will provide a written notice of the Force Majeure Event to the other party with details of the anticipated impact on performance of its obligations under this Agreement.
• (b) If a Force Majeure Event continues for more than 15 business days, either party may terminate the Agreement by written notice to the other without liability to the other party, including for Consequential Loss.
• (c) The Customer remains liable to pay the Fees for the Hire Period whilst the Equipment is not in possession of the Hirer.

21.2 No Waiver

No waiver of rights under this Agreement shall constitute a subsequent waiver of this or any other right under this agreement. Any failure on our part to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision.

21.3 Variations

Any variation to this Agreement must be in writing and signed by both parties. Any changes must be documented in writing; verbal agreements will not modify the terms of the Agreement.

21.4 Severability

If any provision of these Terms is unenforceable or invalid, it will be ineffective to the extent it is unenforceable or invalid and will not affect the enforceability or validity of the remaining provisions.

21.5 Survival

Termination or expiration in whole or in part of the Agreement does not affect those provisions and those obligations of a party which by their very nature survive termination, including clause 10 (Lost, damaged or stolen Equipment), 13 (Insurance), 14.2 (Security), 15 (Privacy), 16 (Intellectual property), 17 (Exclusions and limitation of liability), 18 (Indemnity) and 21.5 (Survival).

21.6 Electronic Signature

The parties expressly consent and agree that this Agreement may be signed electronically, including through exchange of scanned PDF signatures.

21.7 Governing law and jurisdiction

This Agreement is governed by the laws in force in Queensland and the parties submit to the exclusive jurisdiction of the courts of Brisbane.

21.8 Entire Agreement

The Agreement is the entire agreement between the parties in respect of all matters dealt with by this Agreement, and supersedes all prior discussions, representations, negotiations, understandings and agreements (both written and verbal) in relation to the subject matter of this Agreement.

22. Definitions

Agreement means the Hire Form(s), these Terms and any schedules or annexures to it.

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Business Day means a day that is not a Saturday, Sunday or public holiday in Queensland.

Cancellation Fee means the amount indicated in the Hire Form.

Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise.

Cleaning Fee means the amount indicated in the Hire Form.

Start Date means the date the earlier of the following:

1. the Customer makes a booking with us and agrees to these Terms;
2. the start date specified in the Hire Form; or
3. the Customer takes possession of the Equipment.

Collection Date means the date specified in the Hire Form, or as agreed in writing between the Hirer and the Customer.

Collection Time means the time specified in the Hire Form, or as agreed in writing between the Hirer and the Customer.

Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties at the Start Date as a likely result of breach of the Agreement:

• (a) incidental, special, remote or unforeseeable loss or damage;
• (b) loss of revenue, profit, income, bargain, opportunity, use, production, business, contract, goodwill, or anticipated savings, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, but excluding loss of any amounts that would, but for the act or omission of a party, have otherwise been payable under this Agreement;
• (c) costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or
• (d) loss or damage of the nature set out above in clauses (a) to (c) (inclusive) that is incurred or suffered by or to a third party.

Customer means the person identified as such in the Hire Form.

Equipment means the machinery (including a Kanga loader, lawn aerator, and soil spreader), vehicles, tools, any necessary attachments or other items whatsoever provided by the Hirer to the Customer, or as set out in the Hire Form.

Fair Wear and Tear means normal deterioration to the Equipment during the Hire Period which could be reasonably expected where the Equipment is used as directed, having regard to the condition, age, and other characteristics specific to the Equipment.

Fees means the Total Hire Fee, and any Services Fee where applicable, as set out in the Hire Form.

GST means the goods and services tax imposed by A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Hire Form means the part of this Agreement labelled as such, setting out the commercial details of the Agreement.

Hire Location means the site at which the Equipment will be used as specified in the Hire Form.

Hire Period means the period commencing on the start date indicated in the Hire Form until such time as the Equipment is returned to the control or possession of the Hirer. The Hire Period may be extended for one or more indefinite periods at the written request of the Customer where approved by the Hirer.

Hirer means The Trustee for The AandA Trust and trading as ‘Soil’d Yourself’ ABN 38 479 157 942.

Hirer Address means the site at which the Customer will collect and/or return the Equipment as specified in the Hire Form.

Intellectual Property Rights means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, circuit layouts, domain names, know-how and other rights of a similar nature worldwide, whether registered or not, and any applications for registration or rights to make such an application.

Late Fee means the amount indicated in the Hire Form, charged on a daily basis.

Road Law means any law, regulation, or rule governing the use of roads, including but not limited to restrictions on driving hours, mass, load, and restraint requirements for the transport of goods and machinery, environmental considerations, speed limits and traffic regulations, including the Heavy Vehicle National Law and Regulations.

Return Date means the date specified in the Hire Form, or as agreed in writing between the Hirer and the Customer.

Return Time means the time specified in the Hire Form, or as agreed in writing between the Hirer and the Customer.

Services means the services referred to as such in the Hire Form.

Services Date means the date specified in the Hire Form, or as agreed in writing between the Hirer and the Customer.

Services Fee means the amount indicated as such in the Hire Form (as applicable).

Special Conditions means the conditions referred to as such in the Hire Form.

Total Hire Fee means the fee indicated as such in the Hire Form.

Training Materials means any written, audiovisual or visual resources provided by the Hirer relating to the use of, maintenance, safety precautions or care requirements for the Equipment.