HISWA General terms and conditions rental and rental of vessels
These are the General Terms and Conditions for Hire and Rental Vessels of the HISWA Association (Dutch Association of Entrepreneurs in the Water Sports Industry). These conditions have been established in consultation with the Consumers' Association and the ANWB within the framework of the Coordination Group Self-Regulation Consultation of the Social and Economic Council. The conditions apply exclusively to members of the HISWA Association. In the event of abuse, the HISWA Association will take action against this. The terms and conditions have been filed with the registry of the Amsterdam District Court on 21 June 2018 under number 66/2018.
ARTICLE 1 - DEFINITIONS
The following definitions apply in these terms and conditions:
a. Entrepreneur: a natural or legal person who concludes an agreement with a consumer for the provision of a vessel against payment of a rental price. This entrepreneur is a member of the HISWA Association.
b. Consumer: a natural person who concludes an agreement with an entrepreneur for the use of a vessel against payment of a rental price. This consumer does not conclude the agreement in the name of his profession or company, but in a personal capacity.
c. Parties: the entrepreneur and the consumer, as described under a and b.
d. Vessel: An item designed to reside and move on water, including the equipment and inventory associated with it. In these terms and conditions, it explicitly concerns a vessel that is intended for sports or leisure activities.
e. Open sailing and motor boat: vessel without a cabin.
f. Rental agreement: an agreement by which the entrepreneur undertakes to allow the consumer to use a vessel without crew for payment.
g. Electronically: by email or website.
h. Inventory list: list of objects belonging to the vessel.
i. Condition list: list on which the parties record before sailing what the condition of the vessel is and what damage, if any, is present.
j. Disputes Committee: the Water Recreation Disputes Committee in The Hague.
All amounts stated in these general terms and conditions include VAT.
ARTICLE 2 – APPLICABILITY OF THESE TERMS AND CONDITIONS
These general terms and conditions apply to every offer and every agreement that the entrepreneur and consumer conclude for the rental/rental of vessels.
ARTICLE 3 – OFFER/QUOTE
1. The entrepreneur makes his offer or quotation orally, in writing or electronically.
2. An oral offer lapses if it is not immediately accepted, unless the entrepreneur has immediately given a term to accept the offer.
3. A written offer or an electronic offer must be dated. If a validity period is mentioned in the offer, the entrepreneur may not change or withdraw his offer within that period. If no term is stated, the entrepreneur may not change or withdraw his offer up to and including 14 days after the date.
4. The offer contains a complete and accurate description of the vessel to be rented and in any case states:
– the rental period and the port of departure/arrival;
– the rent with any additional costs and payment method;
– the amount of the deductible of the insurance;
– the amount and manner of security;
– the cancellation policy.
5. The entrepreneur provides a copy of these general terms and conditions with every offer.
ARTICLE 4 – AGREEMENT
1. There is an agreement as soon as the consumer accepts the offer from the entrepreneur. If he accepts this offer electronically, the entrepreneur will send a confirmation electronically to the consumer.
2. Each agreement is preferably recorded in writing or electronically.
3. In the case of a written agreement, the entrepreneur must always provide the consumer with a copy.
ARTICLE 5 – PRICE AND PRICE CHANGES
1. The entrepreneur and the consumer agree in advance:
– which rental price and any additional costs the consumer must pay; and
– whether the entrepreneur may change the price in the interim and if so, under what conditions.
2. The entrepreneur can always pass on changes in taxes, excise duties and other similar government levies to the consumer.
ARTICLE 6 – PAYMENT TERMS
1. The consumer must pay the rent within 14 days after receipt of the invoice, but in any case on the commencement date of the agreed rental period. He can pay the rent at the entrepreneur's office or by transferring the money to a bank account determined by the entrepreneur.
2. If the consumer does not pay on time, he is in default without the entrepreneur having to give him notice of default. Nevertheless, after the payment date has passed, the entrepreneur still sends one free payment reminder to the consumer. In it, he points out the consumer's default and gives him the opportunity to pay the bill within 14 days. In the payment reminder, the entrepreneur also mentions the extrajudicial collection costs that the consumer owes in the event of late payment.
3. If the 14-day term referred to in paragraph 2 has expired and the consumer has not yet paid, the entrepreneur is authorized to demand payment of the amount owed, without having to give the consumer further notice of default. He may reasonably charge the consumer for the extrajudicial collection costs associated with this. Maximum amounts apply to this that are stated in the Decree on compensation for extrajudicial collection costs. Subject to legal changes, these maximum amounts are set at:
– 15% on the first € 2.500, with a minimum of € 40;
– 10% on the next € 2.500;
– 5% on the next € 5.000;
– 1% on the next € 190.000;
– 0,5% on the excess, with a maximum of € 6.775.
ARTICLE 7 – CANCELLATION
1. If the consumer wishes to cancel the rental agreement, he must inform the entrepreneur in writing or electronically as soon as possible. If the consumer cancels, the entrepreneur can claim a fixed (fixed) compensation of:
– 15% of the agreed rent in the event of cancellation up to 3 months before the start of the rental period;
– 50% of the agreed rent in the event of cancellation up to 2 months before the start of the rental period;
– 75% of the agreed rent in the event of cancellation up to 1 month before the start of the rental period;
– 100% of the agreed rent in case of cancellation within 1 month before the start of the rental period or on the commencement date of the rental period.
A minimum of € 65 applies to all compensation amounts mentioned.
2. If the consumer cancels a rental agreement with a rental fee of €250 or less, other compensation amounts than those referred to in paragraph 1 apply. In these cases, the entrepreneur can claim a fixed (fixed) compensation of:
– 10% of the agreed rent in the event of cancellation up to 1 week before the start of the rental period;
– 50% of the agreed rent in case of cancellation up to 2 days before the start of the rental period;
– 100% of the agreed rent in case of cancellation within 2 days before the start of the rental period.
3. The entrepreneur can cancel a rental agreement for an open sailing and/or motor boat if the rental period is a maximum of 2 days. He must inform the consumer of this in writing in good time. If he does not do this in time, the consumer can claim 25% of the rent owed.
4. If the consumer cancels a rental agreement, he can ask the entrepreneur whether another person may take over the agreement through a 'substitution'. If the entrepreneur agrees to this, the consumer will owe change costs. These change costs amount to 10% of the agreed rent with a minimum of € 45,50 and a maximum of € 113,50.
ARTICLE 8 – OBLIGATIONS OF THE ENTREPRENEUR
1. At the start of the rental period, the entrepreneur makes the vessel available to the consumer. The entrepreneur ensures that the vessel is in good condition, that it can be used for the use for which it is intended and that it is provided with proper safety equipment that is geared to the agreed sailing area.
2. The entrepreneur is obliged to adequately insure the vessel for the benefit of the consumer against legal liability, hull damage and theft. This insurance only applies to the use of the vessel in the sailing area that the entrepreneur and the consumer have agreed upon. The insurance is subject to a reasonable deductible that is in line with the value of the ship.
3. Before sailing, the parties shall record the condition of the vessel in a condition list signed by both parties. The entrepreneur provides the consumer with a copy of the signed condition list.
4. The entrepreneur provides the consumer with an inventory list before departure.
5. At the end of the rental period, the entrepreneur will receive the vessel at the agreed place and time, unless he has agreed otherwise with the consumer.
6. The entrepreneur ensures that the necessary (emergency) telephone numbers are present in the vessel.
ARTICLE 9 – OBLIGATIONS OF THE CONSUMER
1. The consumer must have sufficient sailing skills. If the consumer does not have a relevant CWO diploma (Water Sports Training Committee) or an equivalent diploma (this at the discretion of the entrepreneur), he must in any case be 18 years or older. This age limit of 18 does not apply to open sailing and/or motor boats.
2. The consumer must ensure that the crew required for the voyage refrain from excessive use of alcohol and/or drugs during the voyage.
3. The consumer must adhere to the instructions of the entrepreneur to preserve the vessel and to preserve the rights of the entrepreneur. This also includes a prohibition to set sail or return to the marina, and an order to sail directly to a mooring place to be determined by the entrepreneur due to bad weather conditions and/or excessive alcohol and/or drug use.
4. Before sailing, the consumer will receive an inventory list from the entrepreneur. The consumer is obliged to check whether the inventory on this list is present in the vessel. He must also check whether the vessel is equipped with safety equipment that is geared to the relevant sailing area.
5. If the inventory on board does not correspond to the inventory on the inventory list, or if the safety equipment is incomplete or defective, the consumer must report this to the entrepreneur before sailing. This does not affect the obligation that the entrepreneur has under Article 8 paragraph 1.
6. Before sailing, the consumer must sign the condition list for approval.
7. The consumer uses the vessel with due care and good skipper and in accordance with the destination. The consumer may not make any changes to the vessel and may not give the vessel to another person for use without written permission from the entrepreneur.
8. At the end of the rental period, the consumer transfers the vessel to the entrepreneur at the agreed time and place and in the same condition in which he received the vessel.
9. The costs directly related to the use of the vessel are for the account of the consumer. This concerns, for example, port, bridge, quay, lock and mooring fees and fuel costs.
10. If the consumer wants to have repairs carried out, he needs permission from the entrepreneur. The entrepreneur will reimburse the repair costs to the consumer if he submits specified invoices for this.
11. The costs of normal maintenance and repair of defects are for the account of the entrepreneur.
12. The consumer must report damage of any kind to the entrepreneur as soon as possible. This also applies to facts and/or circumstances that can reasonably lead to damage.
ARTICLE 10 – LIABILITY
1. The consumer is liable for damage and/or loss of the vessel during the period that he has rented the vessel. This only applies to damage and/or loss insofar as not covered by the insurance. The consumer is not liable if he can demonstrate that the damage and/or loss was not caused by him or by one of his fellow passengers or cannot be attributed to him and/or his persons. Damage also includes consequential damage.
2. The consumer is always liable for (consequential) damage that he causes if:
– he knowingly uses the vessel outside the sailing area that he has agreed with the entrepreneur; and/or
– he knowingly does not comply with the instructions of the entrepreneur to preserve the vessel and/or to preserve the rights of the entrepreneur.
3. This liability is limited to an amount of € 500,- plus the deductible and applies regardless of the insurance of the vessel.
4. The entrepreneur is not liable for damage to property or for any physical injury or accident. He is only liable for this if that damage and/or that injury/accident is the direct result of a defect in the rented vessel.
ARTICLE 11 – BREACH OF THE AGREEMENT
1. If the entrepreneur does not fulfill his obligations under the rental agreement, the consumer can dissolve the rental agreement, without having to go to court for this. The entrepreneur must then immediately repay all amounts that the consumer has already paid.
2. The consumer can also claim compensation for any damage he has suffered, unless the shortcoming on the part of the entrepreneur cannot be attributed to the entrepreneur.
3. The above does not apply if the entrepreneur offers an alternative solution that is reasonable for both parties.
4. If the consumer hands over the vessel later than at the agreed time and/or not at the agreed place, the entrepreneur is entitled to a proportional increase in the rent and to compensation for further (consequential) damage. This right lapses if the late transfer of the vessel and/or the other place of transfer cannot be attributed to the consumer.
5. If the consumer does not hand over the vessel in the same condition in which he received it, the entrepreneur has the right to restore the vessel to the stated condition at the expense of the consumer. He may also do so if the consumer has not complied with the obligations in Article 9 of these terms and conditions. The consumer does not have to pay the repair costs insofar as they are covered by the insurance. This does not apply if there is a situation as referred to in Article 10 paragraph 2.
ARTICLE 12 – COMPLAINTS
1. If the consumer has complaints about the execution of the agreement, he must report these to the entrepreneur by letter or electronically. He must do this within a competent (appropriate) time after he has discovered or could have discovered the defects. He must adequately describe and explain the complaints.
2. If the consumer has complaints about an invoice, he should preferably report them to the entrepreneur by letter. He must do this within a reasonable (appropriate) time after he has received the relevant invoice. He must sufficiently describe and explain the complaints in his letter.
3. If the consumer does not submit his complaint in time, this may lead to the loss of his rights in this area. If the fact that he has not complained in time cannot reasonably be attributed to the consumer, he will retain his rights.
4. If it has become clear that the complaint cannot be resolved by mutual agreement, there is a dispute.
ARTICLE 13 – DISPUTE RESOLUTION
1. If the consumer and the entrepreneur have a dispute, either of them can submit this dispute to the Water Recreation Disputes Committee, Bordewijklaan 46, PO Box 90600, 2509 LP The Hague (www.sgc.nl). The following conditions apply for this:
a. The dispute concerns the conclusion or implementation of an agreement between the entrepreneur and the consumer.
b. The agreement concerns services or goods that the entrepreneur is going to deliver or has delivered to the consumer.
c. These general terms and conditions apply to the agreement.
2. The Disputes Committee will only deal with a dispute if:
a. the consumer has first submitted his complaint to the entrepreneur;
b. the entrepreneur and the consumer have not come to a solution together;
c. the dispute has been submitted to the Disputes Committee within 12 months after the consumer has submitted his complaint to the entrepreneur;
d. the dispute has been submitted to the committee in the form of a letter or in another form determined by the committee.
3. In principle, the Disputes Committee only deals with disputes that have a financial interest of a maximum of € 14.000. If a dispute has a financial interest of more than € 14.000, the committee can only deal with this if both parties expressly agree.
4. If a consumer submits a dispute to the Disputes Committee, the entrepreneur is obliged to accept it. If the entrepreneur wants to submit a dispute to the Disputes Committee, he must ask the consumer to let us know within 5 weeks whether he agrees. In doing so, the entrepreneur must announce that – if the consumer does not respond within those 5 weeks – he can initiate proceedings before the court.
5. When handling the dispute and making a decision, the Disputes Committee follows the regulations that apply to the committee. On request, these regulations will be sent to the consumer and/or the entrepreneur. The decisions of the Disputes Committee take the form of a binding advice. A fee is payable for the handling of a dispute.
6. Only the court and the aforementioned Disputes Committee are authorized to take cognizance of disputes between the entrepreneur and the consumer.
ARTICLE 14 – WARRANTY OF PERFORMANCE
1. HISWA Association guarantees that its members comply with the binding advice of the Disputes Committee. This does not apply if a member decides to submit the advice to the court for review within 2 months after it was sent. If the advice remains in force after review by the court and the judgment showing this is irrevocable, the guarantee will start again. The HISWA Association pays out a maximum of € 10.000 to the consumer per binding advice. This also applies if, according to the binding advice, the consumer owes more than € 10.000 from the entrepreneur. In that case, the consumer will receive € 10.000 from the HISWA Association and the HISWA Association has a best-efforts obligation to ensure that the entrepreneur pays the rest.
2. To make a claim under this guarantee, the consumer must request this in writing from the HISWA Association. He must also transfer the claim he has against the entrepreneur to the HISWA Association. If the claim is higher than €10.000, the consumer in principle only needs to transfer the part of the claim that is less than €10.000. But if the consumer wishes, he can also transfer the part of the claim that exceeds € 10.000. The HISWA Association will then claim payment from the entrepreneur in its own name and at its own expense. If the HISWA Association succeeds, it will pay the amount to the consumer.
3. HISWA Association does not provide a compliance guarantee if – before the consumer has met all formal collection requirements for the handling of the dispute – one of the following situations occurs:
a. The entrepreneur has been granted a suspension of payments.
b. The entrepreneur has been declared bankrupt.
c. The business activities of the entrepreneur have actually ended.
Decisive for this situation is the date on which the business termination is registered in the Trade Register or an earlier date, from which the HISWA Association can demonstrate that the business activities have actually ended.
The formal collection requirements are understood to mean the actions that the consumer must take to have the dispute handled by the Disputes Committee. This includes paying the complaint fee, submitting a completed and signed questionnaire and any deposit.
ARTICLE 15 – DEROGATION FROM THE TERMS AND CONDITIONS
Additional provisions or provisions that deviate from these general terms and conditions may not be to the detriment of the consumer and must be recorded either in writing or in such a way that they can be stored by the consumer in an accessible manner on a durable data carrier.
ARTICLE 16 – CHANGES
If the HISWA Association changes these general terms and conditions, this is always done in consultation with the ANWB and the Consumers' Association.
ARTICLE 17 – CHOICE OF LAW
Dutch law applies to all disputes relating to this agreement, unless other national law applies on the basis of mandatory rules.