TERMS AND CONDITIONS
ACTIVITY AND EQUIPMENT HIRE TERMS AND CONDITIONS
Customers are explicitly advised to check section 8 regarding Insurance – as the Hirer / PROVIDER does not provide Personal Injury Cover for the Customer and they should check with their existing Insurer that they have personal cover when using any other equipment supplied by or activity provided by Fosup Adventure.
BACKGROUND:These Terms and Conditions shall apply to the hire of all the “Equipment” from FOSUP Adventure and the participation in any "Activity" organised by Fosup by Customers (or any person whosoever becomes uses equipment or takes part in activity as a result of the customers actions or omissions) who are hiring the Equipment for use at a location of their choice (the “Location”) or participating in an activity booked through our website or through Fosup.
1. Definitions and Interpretation
1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:“Customer” means the customer who is hiring the Equipment subject to these Terms and Conditions;“Deposit” means the sum payable by the Customer under Clause 3 of these Terms and Conditions and as set out in the Hire Agreement;“Price List” means the Hirer’s price list, current at the time of the start of the Hire Term;“Hire” means the hire of the Equipment by the Customer subject to these Terms and Conditions;“Hire Agreement” means the agreement entered into by the Customer and the Hirer incorporating these Terms and Conditions which shall govern the Hire of the Equipment; and“Hire Fees” means the sum payable by the Customer for the Hire as determined under Clause 4 of these Terms and Conditions.“Hire Term” means the start and end date of the Hire as set out in the Schedule to these Terms and Conditions.
1.2 Unless the context otherwise requires, each reference in these Terms and Conditions to:
1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.3 “these Terms and Conditions” is a reference to these Terms and Conditions and each of the Schedules as amended or supplemented at the relevant time;
1.2.4 a Schedule is a schedule to these Terms and Conditions;
1.2.5 a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule; and
1.2.6 a “Party” or the “Parties” refer to the parties to these Terms and Conditions.
1.3 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
1.4 Words imparting the singular number shall include the plural and vice versa.
1.5 References to any gender shall include the other gender.
2. Hire Term
2.1 The agreed Hire Term will be set out in the Schedule to these Terms and Conditions.
2.2 If the Customer wishes to extend the Hire Term they may do so at any time prior to the end of the Hire Term. The Customer must contact the Hirer to arrange such an extension. Extensions may be made subject always to the existence of prior reservations made by other customers. The Hirer shall use its best and reasonable endeavours to satisfy requests for extensions but cannot guarantee the availability of the Equipment to the Customer beyond the end of the pre-existing Hire Term.
2.3 The Hirer (FOSUP) reserves the right to recall the Equipment immediately at any time. In the event that the Hirer exercises this right the Customer will be reimbursed for any and all days remaining in the Hire Term or will be issued immediately with replacement Equipment of the same type or of the closest type thereto at no additional cost. If the Equipment is not returned to the Hirer on request the Customer shall be deemed to have authorised the Hirer to charge for any costs associated with such recovery.
2.3.1 Age of the renter (the renter is the person(s) who pay to hire equipment from the hirer/lessor) All hire must be made by a person of 18 and over. Identification may be required to prove age. Failure to provide identification may result in a refusal to hire.
2.3.2 All children under the age of 18 must be accompanied by a parent or registered carer (the responsible person).
2.3.3 The renter expressly agrees that the acceptance of hire constitutes a waiver and release of liability. Should the responsible persons actions or omissions (during the hire) place the child in their care at risk, or, cause harm, injury or death to the child or another, the renter agrees to release and indemnify FOSUP, its owners, agents and employees from any and all claims, actions or losses for bodily injury, property damage, wrongful death, loss of services or otherwise which may arise out of the renters use of hired equipment or the renters participation in paddle and board sports.
2.4 Activity Risk
2.4.1 The hirer / participant expressly acknowledges to understand the risk of the activities they choose to undertake, and that those risks could result in injury, harm or death to themselves or others.
2.4.2 The renter agrees to having the appropriate level of skill, knowledge and experience to undertake the activity safely.
2.4.3 The renter expressly agrees to understanding they are releasing, discharging and waiving any claims or actions that they (the renter and their agents) may have at the present time or in the future fro the negligent acts, omissions or other conduct by the owners, agents, officers or employees of FOSUP
2.4.4 The renter shall bear all risk and responsibility of and for any and all damage, loss or theft of any and all equipment hired or otherwise provided by FOSUP or any portions thereof, including but not limited to vandalism or theft and shall pay the lessor (Fosup) the full cost of repair of replacement.
2.4.5 The renter is advised to wear a buoyancy aid. The renter understands that a buoyancy aid does not remove all risk or injury, drowning or death. The renter alone must determine the full extent of the precaution they should take to minimise the risks of the activity. The renter expressly assumes the risk of the activity.
3. Deposit
3.1 The Customer shall not be required to pay a refundable Deposit to the Hirer at the commencement of the Hire Term, unless stated by the Hirer prior to the commencement of the Hire Term. The sum of the Deposit shall be set out in the Schedule to these Terms and Conditions.
3.2 In the event of a deposit being deemed necessary by the Hirer, at the end of the Hire Term the Hirer shall have a period of seven (7) days within which to fully inspect the Equipment. If the Equipment requires cleaning and / or maintenance which is the result of normal wear and tear the Customer will receive the Deposit back in full at the end of the inspection period. In the event that additional cleaning and / or maintenance is required the Hirer shall retain the Deposit in full or in part as appropriate and shall provide the reasons for such retention to the Customer in writing, including all relevant calculations and pricing information.
4. Fees and Payment
4.1 The Hire Fees will be determined by reference to the length of the Hire Term, the type and quantity of Equipment, the Price List and any additional items which may be included in the Hire, as set out in the Schedule to these Terms and Conditions.
4.2 Payment shall be made in full, as set out in the Schedule to these Terms and Conditions, prior to the commencement of the Hire Term. Online payment can be made by credit / debit card.
5. Delivery and Collection
5.1 Following the receipt by the Hirer of the Hire Fees (and Deposit if required), either (1) the Hirer shall deliver the Equipment to the Location on the agreed date, as set out in the Schedule to these Terms and Conditions, or (2) the Customer will collect the Equipment from the Hirer by prior appointment.
5.2 The Hirer shall use its best and reasonable endeavours to ensure that delivery is made on time but shall not be liable for any failure to do so.
5.3 The Customer or a suitable authorised representative must be available at the Location at the time of acceptance / delivery in order to sign for the Equipment. In the event that the Customer fails to comply with the provisions of this sub-Clause 5.3 it shall be deemed to have accepted delivery of the Equipment, assumed responsibility therefore and shall not have the right to subsequently dispute the facts of the delivery or further claim a refund.
5.3.1 In the event that the customer does not take acceptance of the equipment within a reasonable time during the allotted hire period, the hirer shall be expressly permitted to further hire the equipment to another.
5.3.2 Where a further hire is commenced by another (as in section 5.3.1), the original customer (whom has not taken acceptance of equipment) will not be entitled to a refund as per section 12.1.4 (below).
5.4 In the event that the Hirer is unable to deliver / complete acceptance of the Equipment with the customer (or representative) due to the Customer’s absence from the Location (along with that of any authorised representatives) additional delivery charges may be incurred for any necessary re-delivery. Any such additional charges shall be borne by the Customer.
5.5 At the end of the Hire Term, the Customer shall ensure that all of the Equipment is clean.
5.6 In the event that any Equipment is missing at the Hire end, the Customer shall be required to pay the relevant Hire Fees for the missing items up to and including the day that they are returned to the Hirer (at the Customer’s expense). If those items are not available for collection due to loss or destruction the Customer shall be required to pay the cost of replacement in accordance with the Hirer’s then current Price List.
6. Use and Care of the Equipment
6.1 The Customer may only use the Equipment for the normal purpose for which it is intended.
6.2 All Equipment must be used in accordance with any and all operation and safety instructions or similar documentation provided.
6.3 The Customer may not make any alterations or adjustments to the Equipment beyond those that would be considered reasonable for normal use of the Equipment within the range of possible adjustments specific to a given item
6.4 The Customer may only affix or connect other items to the Equipment where such affixation does not exceed the design limitations of the Equipment and is not likely to damage it in any way.
6.5 The Customer shall at all times treat the Equipment with a reasonable level of care and shall ensure that it is kept clean, subject always to reasonable levels of wear and tear. In particular, the Customer shall clean the Equipment before returning to the Hirer so that is in no less clean than when provided to the Customer.
6.6 In the event that the Equipment is not available for whatever reason, the Hirer reserves the right to substitute the Equipment with equipment of a similar quality and specification, and which may be a different brand.
7. Maintenance
7.1 The Customer shall not attempt to make any repairs to the Equipment without the prior written consent of the Hirer. When the Hirer is contacted in this regard it shall have the option of repairing the Equipment itself or granting the Customer permission to make the necessary repairs. The cost of such repairs shall be borne by either the Hirer or the Customer, the responsibility being determined by the reasons for those repairs.
7.2 All parts which may require replacement during the Hire Term shall be replaced free of charge by the Hirer provided that such replacement is necessitated by nothing more than normal wear and tear. Additional damage may result in the Customer being charged for the cost of replacement parts and associated labour.
8. Insurance
8.1 The Equipment shall be insured by the Hirer as part of the Hire. This insurance cover provides for the following:
8.1.1 Damage whilst the Equipment is being used responsibly in accordance with these Terms and Conditions.
8.1.2 Theft, provided such theft occurs to Equipment responsibly looked after by the Customer.
8.2 The insurance cover provided for in this Clause 8 shall not cover malicious damage.
8.3 In the event of damage or theft of the Equipment, the Customer will have to pay an insurance excess of up to two hundred pounds (£200) per event.
8.4 The Hirer will maintain sufficient public liability insurance coverage at all times during the Hire Term.8.5 The Equipment is only insured for use in the United Kingdom and must not be taken outside of the United Kingdom without the Hirer’s prior written approval.
9. Liability
9.1 The Hirer will not be liable for any personal injury to the Hirer or anyone using the Equipment.
9.2 The Hirer will not be liable for any damage to property which results from the improper use of the Equipment.
9.3 The Hirer will not be liable for any other loss or damage arising out of any circumstances beyond its reasonable control.
9.4 Nothing in these Terms and Conditions restricts the Hirer’s liability for death or personal injury arising out of any act or omission of the Hirer.
9.5 Subject to the foregoing, the Hirer’s liability shall not exceed the Hire Fees actually paid by Customer.
10. Data ProtectionThe Hirer will not share the Customer’s personal data with any third parties for any reasons without the prior consent of the Customer. Such data will only be collected, processed and held in accordance with the Hirer’s rights and obligations arising under the provisions and principles of the Data Protection Act 1998.
11. Hirer Termination
11.1 Where the Customer is an individual, the Hirer shall be entitled to terminate the Hire in the event that:
11.1.1 the Customer is in breach of these Terms and Conditions;
11.1.2 the Customer has had their personal belongings confiscated in order to satisfy debts; or
11.1.3 the Customer has a receiving order made against them.
11.2 Where the Customer is a company, the Hirer shall be entitled to terminate the Hire in the event that:
11.2.1 the Customer is in breach of these Terms and Conditions;
11.2.2 the Customer goes into bankruptcy or liquidation either voluntary or compulsory (save for the purposes of bona fide corporate reconstruction or amalgamation) or if a receiver is appointed in respect of the whole or any part of its assets.
11.3 In the event of termination for any of the above reasons:
11.3.1 all payments required under these Terms and Conditions shall become due and immediately payable; and
11.3.2 the Hirer shall have the immediate right to request the immediate return of the Equipment or repossess the Equipment and may charge the Customer for any reasonable costs involved in such repossession.
12. Customer Termination
12.1 In the event Customer terminates the Hire, the following charges shall be applicable:
12.1.1 If the Customer gives the Hirer over 20 days’ written notice: 25% of the hire fees shall be payable.
12.1.2 If the Customer gives the Hirer between 14 and 20 days’ (inclusive) written notice: 50% of the Hire Fees shall be payable.
12.1.3 If the Customer gives the Hirer less than 14 days’ written notice: 75% of the Hire Fees shall be payable.
12.1.4 If the Customer gives the Hirer less than 5 days’ written notice: 100% of the Hire Fees shall be payable.
13. No WaiverNo failure by either the Hirer or the Customer to enforce the performance of any provision in these Terms and Conditions shall constitute a waiver of the right to subsequently enforce that provision or any other provision of these Terms and Conditions. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
14. Severance. If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Terms and Conditions and the remainder of the provision in question shall not be affected thereby.
14.1 Renter agrees that no term may be waived or modified (including provision against verbal modification) except in writing signed by both parties.
15. Force Majeure. The Hirer shall not be liable for, nor shall it be considered in breach of these Terms and Conditions due to, any failure to perform its obligations pursuant to these Terms and Conditions as a result of a cause beyond its control, including any act of God or a public enemy or terrorist, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, theft or criminal misconduct of unrelated third parties, disruption or outage of communications (including the Internet or other networked environment), power or other utility, labour problem, unavailability of supplies, extraordinary market conditions or any other cause, whether similar or dissimilar to any of the foregoing, which could not have been prevented by the Hirer with reasonable care.
16. Law and Jurisdiction
16.1 These Terms and Conditions shall be governed by the laws of England and Wales.
16.2 Any dispute between the Parties relating to these Terms and Conditions shall fall within the jurisdiction of the courts of England and Wales. Updated 23 March 2023 Equipment costs schedule: Costs to replace equipment are: Board £650, Fin £50, Bag £75, Paddle £65, Pump £45, pump tube £20. Buoyancy aide £40, Surfboard £350, Tow Float £20, NSP Carolina Board £2700, Belly Board £75, Wetsuit £35, Giant paddle Board, £2,500, Camera and equipment £100, Helmet £40, whistle £3. Other unlisted items will be charged at a reasonable rate.