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HISWA GENERAL TERMS AND CONDITIONS FOR THE RENTAL AND LEASING OF RECREATIONAL BOATS

HISWA GENERAL TERMS AND CONDITIONS FOR BOAT RENTAL AND LEASING
These are the General Terms and Conditions for the Rental and Leasing of Watercraft of the HISWA Association (Dutch Association of Entrepreneurs in the Water Sports Industry). These terms and conditions were developed in consultation with the Consumentenbond and the ANWB within the framework of the Coordination Group for Self-Regulation Consultations of the Social and Economic Council. The terms and conditions apply exclusively to members of the HISWA Association. The HISWA Association will take action against any misuse. The terms and conditions were filed with the clerk’s office of the Amsterdam District Court on June 21, 2018, under number 66/2018.
ARTICLE 1 – DEFINITIONS
For the purposes of these terms and conditions, the following definitions apply:
  • Business Operator: a natural person or legal entity that enters into a contract with a consumer for the provision of a vessel in exchange for a rental fee. This business operator is a member of the HISWA Association.
  • Consumer: a natural person who enters into a contract with a business operator for the use of a vessel in exchange for a rental fee. This consumer enters into the contract not in the course of a trade or business, but in a personal capacity.
  • Parties: the business operator and the consumer, as described in sections a and b.
  • Vessel: an object designed to remain on and move across the water, including the equipment and furnishings that belong to it. These terms and conditions explicitly refer to a vessel intended for sports or recreational use.
  • Open sailboat and motorboat: a vessel without a cabin.
  • Rental Agreement: an agreement under which the business owner agrees to make an unmanned vessel available to the consumer in exchange for payment.
  • Electronically: via email or website.
  • Inventory list: a list of items belonging to the vessel.
  • Condition Report: a list in which the parties document, prior to departure, the condition of the vessel and any existing damage.
  • Dispute Resolution Committee: the Water Recreation Dispute Resolution 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 entered into between the business and the consumer regarding the rental of watercraft.
ARTICLE 3 – OFFER/QUOTE
  1. The business owner makes his offer or quotation verbally, in writing, or electronically.
  2. A verbal offer expires if it is not accepted immediately, unless the business owner has specifically set a time limit for accepting the offer.
  3. A written or electronic offer must be dated. If the offer specifies a validity period, the business owner may not change or withdraw the offer within that period. If no time limit is specified, the business owner may not change or withdraw the offer until 14 days after the date of the offer.
  4. The offer must contain a complete and accurate description of the vessel to be chartered and must specify at a minimum: – the charter period and the port of departure/arrival; – the charter fee, including any additional costs, and the method of payment; – the amount of the insurance deductible; – the amount and method of security deposit; – the cancellation policy.
  5. With each offer, the business provides a copy of these general terms and conditions.
ARTICLE 4 – AGREEMENT
  1. A contract is formed as soon as the consumer accepts the business’s offer. If the consumer accepts this offer electronically, the business will send a confirmation to the consumer electronically.
  2. Every contract should preferably be recorded in writing or electronically.
  3. In the case of a written contract, the business must always provide the consumer with a copy.
ARTICLE 5 – PRICE AND PRICE CHANGES
  1. The business and the consumer agree in advance: – what rental price and any additional costs the consumer must pay; and – whether the business may change the price during the term of the agreement and, if so, under what conditions.
  2. The business may always pass on to the consumer any changes in taxes, excise taxes, and other similar government levies.
ARTICLE 6 – TERMS OF PAYMENT
  1. The consumer must pay the rent within 14 days of receiving the invoice, but in any case no later than the start date of the agreed rental period. The consumer may pay the rent at the business owner’s office or by transferring the funds to a bank account designated by the business owner.
  2. If the consumer fails to pay on time, they are in default without the business owner having to issue a formal notice of default. Nevertheless, after the payment due date has passed, the business owner will send the consumer one additional payment reminder free of charge. In this reminder, the business owner will notify the consumer of the default and give the consumer another opportunity to pay the bill within 14 days. In the payment reminder, the business also specifies the out-of-court collection costs that the consumer will owe in the event of late payment.
  3. If the 14-day period referred to in paragraph 2 has expired and the consumer has not yet paid, the business is entitled to demand payment of the amount due without having to issue a further notice of default to the consumer. The business may reasonably charge the consumer for the associated out-of-court collection costs. Maximum amounts for these costs are set forth in the Decree on Compensation for Out-of-Court Collection Costs. Subject to changes in the law, 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 amount exceeding that, with a maximum of €6,775.
ARTICLE 7 – CANCELLATION
  1. If the consumer wishes to cancel the rental agreement, he must notify the business of this in writing or electronically as soon as possible. If the consumer cancels, the business is entitled to a fixed compensation amount of: – 15% of the agreed rental fee for cancellations up to 3 months before the start of the rental period; – 50% of the agreed rental amount for cancellations up to 2 months before the start of the rental period; – 75% of the agreed rental amount for cancellations up to 1 month before the start of the rental period; – 100% of the agreed rental amount for cancellations within 1 month prior to the start of the rental period or on the start date of the rental period. A minimum of €65 applies to all compensation amounts listed above.
  2. If the consumer cancels a rental agreement with a rental fee of €250 or less, different compensation amounts apply than those specified in paragraph 1. In these cases, the business may claim a fixed compensation amount of: – 10% of the agreed rental fee for cancellations up to 1 week before the start of the rental period; – 50% of the agreed rental amount for cancellations up to 2 days before the start of the rental period; – 100% of the agreed rental amount for cancellations within 2 days before the start of the rental period.
  3. The business owner may cancel a rental agreement for an open sailboat and/or motorboat if the rental period is 2 days or less. He must notify the consumer of this in writing in a timely manner. If the business owner fails to do so in a timely manner, the consumer is entitled to 25% of the rental fee owed. 4. If the consumer cancels a rental agreement, they may ask the business owner if another person may take over the agreement through a “substitution.” If the business owner agrees to this, the consumer is liable for amendment fees. These amendment fees amount to 10% of the agreed-upon rental fee, with a minimum of €45.50 and a maximum of €113.50.
ARTICLE 9 – CONSUMER OBLIGATIONS
  1. The consumer must possess sufficient boating skills. If the consumer does not hold a relevant CWO (Commissie Watersport Opleiding) certificate or an equivalent certificate (as determined by the business owner), he or she must be at least 18 years of age. This age limit of 18 does not apply to open sailboats and/or motorboats.
  2. The consumer must ensure that the crew required for the voyage refrains from excessive use of alcohol and/or drugs during the voyage.
  3. The consumer must comply with the operator’s instructions regarding the maintenance of the vessel and the protection of the operator’s rights. This includes a prohibition on setting sail or returning to the marina, and a requirement to sail directly to a mooring location designated by the operator due to adverse weather conditions and/or excessive alcohol and/or drug use.
  4. Before departure, the consumer receives an inventory list from the business owner. The consumer is required to verify that the items listed on this inventory are present on the vessel. They must also verify that the vessel is equipped with safety equipment appropriate for the relevant navigation area.
  5. If the items on board do not match those on the inventory list, or if the safety equipment is incomplete or defective, the consumer must report this to the operator before departure. This does not affect the operator’s obligation under Article 8, paragraph 1.
  6. Before departure, the consumer must sign the condition report to indicate agreement.
  7. The consumer shall use the vessel with due care and as a responsible skipper, and in accordance with its intended purpose. The consumer may not make any modifications to the vessel and may not allow another person to use it without the business owner’s written consent.
  8. At the end of the rental period, the consumer shall return the vessel to the business at the agreed time and place and in the same condition as when he received it.
  9. The costs directly related to the use of the vessel are the responsibility of the consumer. These include, for example, harbor, bridge, dock, lock, and mooring fees, as well as fuel costs.
  10. If the consumer wishes to have repairs performed, he must obtain permission from the operator. The operator will reimburse the consumer for the repair costs upon submission of itemized invoices.
  11. The costs of routine maintenance and repair of defects are the responsibility of the business.
  12. The consumer must report any damage of any kind to the business as soon as possible. This also applies to facts and/or circumstances that could reasonably lead to damage.
ARTICLE 10 – LIABILITY
  1. The consumer is liable for damage to and/or loss of the vessel during the period in which he has rented it. This applies only to damage and/or loss to the extent not covered by insurance. The consumer is not liable if he can prove that the damage and/or loss was not caused by him or by any of his fellow passengers, or is not attributable to him and/or his party. “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 navigation area agreed upon with the business operator; and/or – he knowingly fails to comply with the operator’s instructions regarding the maintenance of the vessel and/or the protection of the operator’s rights.
  3. This liability is limited to €500 plus the deductible and applies regardless of the vessel’s insurance coverage.
  4. The business owner is not liable for damage to property or for any bodily injury or accident. He is liable for such damage and/or injury or accident only if it is the direct result of a defect in the rented vessel.
ARTICLE 11 – BREACH OF THE AGREEMENT
  1. If the business fails to fulfill its obligations under the lease agreement, the consumer may terminate the lease agreement without having to go to court. The business must then immediately refund all amounts the consumer has already paid.
  2. The consumer may also claim compensation for any damages suffered, unless the business’s failure to perform cannot be attributed to the business.
  3. The above does not apply if the business operator offers an alternative solution that is reasonable for both parties.
  4. If the consumer transfers the vessel later than the agreed-upon time and/or not at the agreed-upon location, the business owner is entitled to a proportional increase in the rental fee and to compensation for any further (consequential) damages. This right lapses if the delayed handover of the vessel and/or the different handover location cannot be attributed to the consumer.
  5. If the consumer does not return the vessel in the same condition as when he received it, the business is entitled to restore the vessel to that condition at the consumer’s expense. The business may also do so if the consumer has failed to comply with the obligations set forth in Article 9 of these terms and conditions. The consumer is not required to pay the repair costs to the extent that they are covered by insurance. This does not apply in the event of a situation as described in Article 10, paragraph 2.
ARTICLE 12 – COMPLAINTS
  1. If the consumer has complaints regarding the performance of the contract, he must report them to the business owner by letter or electronically. He must do so within a reasonable (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, they must report them to the business, preferably by letter. They must do so within a reasonable time after receiving the invoice in question. They must sufficiently describe and explain the complaints in their letter.
  3. If the consumer does not file their complaint in a timely manner, this may result in the loss of their rights in this regard. However, if the failure to file a timely complaint cannot reasonably be attributed to the consumer, they retain their rights.
  4. Once it has become clear that the complaint cannot be resolved through mutual agreement, a dispute has arisen.
ARTICLE 13 – DISPUTE RESOLUTION
  1. If a consumer and a business have a dispute, either party may submit the dispute to the Water Recreation Dispute Resolution Committee, Bordewijklaan 46, P.O. Box 90600, 2509 LP The Hague (www.sgc.nl). The following conditions apply: a. The dispute concerns the formation or performance of a contract between the business and the consumer. b. The contract concerns services or goods that the business will provide or has provided to the consumer. c. These general terms and conditions apply to the contract.
  2. The Dispute Resolution Committee will only consider a dispute if: a. the consumer has first submitted his complaint to the business; b. the business and the consumer have been unable to reach a resolution together; c. the dispute has been submitted to the Dispute Resolution Committee within 12 months after the consumer submitted their complaint to the business; d. the dispute has been submitted to the Committee in the form of a letter or in another form specified by the Committee.
  3. In principle, the Dispute Resolution Committee only handles disputes involving a financial interest of up to €14,000. If a dispute involves a financial interest exceeding €14,000, the Committee may only handle it if both parties expressly agree to this.
  4. If a consumer submits a dispute to the Dispute Resolution Committee, the business is required to accept it. If the business wishes to submit a dispute to the Dispute Resolution Committee, it must ask the consumer to indicate within 5 weeks whether they agree to this. The business must also state that—if the consumer does not respond within those 5 weeks—it may initiate legal proceedings in court.
  5. In handling the dispute and rendering its decision, the Dispute Resolution Committee follows the rules governing the committee. Upon request, these rules will be sent to the consumer and/or the business. The Dispute Resolution Committee’s rulings take the form of a binding recommendation. A fee is payable for the handling of a dispute.
  6. Only the court and the aforementioned Dispute Resolution Committee are authorized to hear disputes between the business and the consumer.
ARTICLE 14 – PERFORMANCE GUARANTEE
  1. The HISWA Association guarantees that its members will comply with the binding recommendations of the Dispute Resolution Committee. This does not apply if a member decides to submit the recommendation to a court for review within 2 months of its issuance. If the ruling is upheld after judicial review and the judgment confirming this is final, the guarantee will take effect again. For each binding recommendation, the HISWA Association will pay a maximum of €10,000 to the consumer. This also applies if, according to the binding recommendation, the consumer is owed more than €10,000 by the business. In that case, the consumer receives €10,000 from HISWA Vereniging, and HISWA Vereniging has a best-efforts obligation to ensure that the business pays the remainder.
  2. To claim this warranty, the consumer must submit a written request to the HISWA Association. The consumer must also assign the claim against the business to the HISWA Association. If the claim exceeds €10,000, the consumer generally need only assign the portion of the claim that is less than €10,000. However, if the consumer wishes, they may also assign the portion of the claim that exceeds €10,000. HISWA Association will then, in its own name and at its own expense, demand payment of that amount from the business. If HISWA Association succeeds in doing so, it will pay the amount to the consumer.
  3. The HISWA Association does not provide a performance guarantee if—before the consumer has met all formal requirements for the dispute to be considered—any of the following situations apply: a. The business has been granted a stay of payments. b. The business has been declared bankrupt. c. The business’s operations have effectively ceased. The decisive date for this situation is the date on which the cessation of business was registered in the Commercial Register or an earlier date, for which HISWA Association can demonstrate that business operations have effectively ceased.
The term “formal filing requirements” refers to the steps the consumer must take to have the dispute heard by the Dispute Resolution Committee. These include paying the complaint fee, submitting a completed and signed questionnaire, and, if applicable, making a deposit.
ARTICLE 15 – DEVIATION FROM THE TERMS AND CONDITIONS

Any 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 the consumer can store them in an accessible manner on a durable medium.

ARTICLE 16 – AMENDMENTS
If the HISWA Association amends these general terms and conditions, it will always do so in consultation with the ANWB and the Consumentenbond.
ARTICLE 17 – GOVERNING LAW
All disputes relating to this agreement shall be governed by Dutch law, unless mandatory rules require the application of another national law.

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