General Terms & Conditions
Regarding the supply of Personnel by Globalmar and Globalmaritime Crewing INC., registered at the Chamber of Commerce in Rotterdam in the Netherlands under number 24402043, and Securities and Exchange Commission in Manila under number CS201011664, respectively.
Article 1 Definitions
The following definitions shall apply to these general terms and conditions:
General Terms and Conditions
The present general terms and conditions, as filed with the Chamber of Commerce.
The agreement made between the Principal and the Provider on the basis of which (and each time, as the case may be) the Provider’s Personnel is supplied to the Principal in order to perform activities under its supervision and management, against payment of the Fee by the Principal to the Provider.
Confirmation of the Assignment:
The written confirmation from the Provider to the Principal, stating that the Provider’s quotation, which has been accepted by the Principal, will be executed.
Each natural and/or legal person to whom the Provider shall supply Personnel against payment of the Fee, in order to perform activities under its management and supervision, other than by virtue of an employment agreement concluded with that person.
Globalmar or Globalmaritime Crewing INC., supplying Personnel to the Principal on the basis of an Assignment agreed with the Principal.
Each natural person either employed by the Provider or working as an independent freelancer or engaged through the Provider, who is supplied to the Principal for the performance of activities under the Assignment against payment of the Fee.
The compensation to be paid by the Principal to the Provider for the supply of Personnel to the Principal, which compensation shall be agreed on the basis of the Assignment and which may be adjusted afterwards in accordance with the Assignment and these General Terms and Conditions.
Article 2 Applicability
1. These General Terms and Conditions shall apply to all quotations, Assignments and other agreements made by the Provider regarding the supply of Personnel by the Provider to the Principal in order to perform activities for, for the benefit of, and under the management of that Principal or, as the case may be, its enterprise.
2. Any general terms and conditions of purchase or other terms and conditions of the Principal shall not apply to the legal relation between the Principal and the Provider and are hereby explicitly renounced. Any arrangements made contrary to these General Terms and Conditions shall apply only if they are agreed in writing.
Article 3 Establishment of the
1. An Assignment shall be established only by means of a written confirmation supplied by the Provider that the Principal has accepted the Provider’s quotation in writing. If no written confirmation is provided by the Provider, the Principal may not exercise any rights on the basis of the quotation made by the Provider.
2. All quotations, regardless of the manner in which they are made, shall be free of engagement.
Article 4 Selection
1. Before the Assignment is given, the Principal shall describe as accurately as possible which job the Personnel to be supplied will exercise, including the applicable job requirements, working hours, number of working hours, duties, location, working conditions and the intended term of the Assignment.
2. Based on the information referred to under 4.1 above as provided by the Principal and on the Provider's information on the Personnel's qualities, skills and availability, the Provider shall select the Personnel.
3. The selection of the person or persons to be supplied to the Principal shall be entirely at the Provider’s discretion.
4. In the event that already supplied Personnel becomes unfit for work or in the event that it becomes apparent during the probation period (if agreed) that the Personnel does not meet the Principal’s requirements, the Principal shall inform the Provider thereof without delay. In any such event the Provider shall do whatever is reasonably within its power to provide for a proper replacement, in consultation with the Principal.
5. The Provider shall not be liable for Personnel which does not meet the requirements set by the Principal, save if and insofar as the Principal can provide evidence for gross negligence on the part of the Provider with regard to the selection. Any complaint regarding such an event is no longer admissible if it has not been filed by the Principal to the Provider, in writing and stating the reasons for the complaint, as soon as possible after it has been established or could reasonably have been established, but at any rate within 7 (seven) days after the actual commencement of the activities by the Personnel.
Article 5 Personnel's employment, instructions
1. Any Personnel supplied to the Principal shall be and remain employed by the Provider.
Unless the Provider only supplies Personnel on a recruiter basis as agreed in the Assignment.
2. During the period of time that any Personnel is working for the Principal, the Principal shall be required to provide instructions and supervision, provided that the Principal shall behave in the same scrupulous manner vis-à-vis the Provider’s Personnel as it is required to behave vis-à-vis its own employees.
3. The Principal shall not be permitted to have Personnel perform another job or other activities than the job or activities agreed upon entering into the Assignment, without the Provider’s prior written approval. The provisions of this paragraph shall apply accordingly to any alteration of the number of working hours agreed under the Assignment.
Article 6 Working hours and amount of working
1. The working hours and amount of working hours of the Personnel supplied to the Principal shall be agreed in the Assignment with due observance of the provisions of these General Terms and Conditions.
2. Unless agreed otherwise in the Assignment, the amount of working hours, the working hours and breaks of the Personnel shall be equal to the relevant times and hours usually applied in the Principal’s enterprise, unless explicitly agreed otherwise in writing. The Principal warrants that the amount of working hours, the working hours and breaks shall be in accordance with the legal requirements. The Principal shall see to it or have others see to it that the Personnel does not work in excess of the legally permitted working hours and the agreed amount of working hours.
Article 7 Duration of the
1. Without prejudice to the provisions of paragraph 2 of this Article, Personnel shall be supplied for an indefinite period of time, a limited period of time, or for the duration of a project/tour. If the Personnel is supplied for a limited period of time, the duration of the engagement agreed between the Principal and the Provider shall be laid down in writing in the Assignment.
2. If by virtue of and with due observance of the provisions of Article 19 the Assignment is terminated at an earlier time than the time agreed in the Assignment, the supply of Personnel to the Principal shall be terminated by operation of the law.
Article 8 No postponement
1. The Principal shall not be entitled to suspend the employment of the Personnel temporarily in full or in part, unless in the event of force majeure within the meaning of Article 20 of these General Terms and Conditions.
2. If the employment is suspended on account of force majeure within the meaning of the preceding paragraph, the Principal shall remain fully required to pay to the Provider the agreed number of hours and amount of overtime in accordance with the Fee, for the duration of the Assignment.
Article 9 Replacement and
1. During the term of the Assignment the Provider shall at all times be entitled to offer replacing Personnel to the Principal. The Principal may refuse a proposal to that effect only if it cannot be reasonably expected of the Principal to agree to the replacement. In the event described in the second sentence of this paragraph, the Principal and the Provider shall find a solution in reasonable consultation.
2. If the Provider is not or not longer able to supply (replacing) Personnel, or not (or no longer) in the same manner and to the same extent as agreed when entering into the Assignment or at a later stage, this shall not constitute a breach of contract on the part of the Provider and the Provider shall not be required to pay damages or compensation of costs to the Principal.
3. If in the event of a replacement, the Fee shall be determined all over again in respect of the replacing worker, in accordance with the provisions of Article 13 of these General Terms and Conditions.
Article 10 Prohibition to lend out
The Principal shall not be permitted to have Personnel perform activities elsewhere, or to lend out Personnel to another natural or legal person, without the Provider’s explicit written approval.
Article 11 Working conditions
1. Unless expressly agreed otherwise in writing, the Principal shall not be permitted to have Personnel working in places which can reasonably be assumed to present health and safety risks.
2. The Principal shall be required to observe the provisions of Section 7:658 of the Dutch Civil Code, the Working Conditions Act and internationally effective laws and regulations and any and all regulations resulting from it. In this respect the Principal shall provide Personnel with specific instructions and personal protective equipment in order to prevent Personnel from suffering damage in the performance of its activities.
3. If the location or the working place where Personnel will be working is changed in relation to the agreements made upon concluding the Assignment, the Principal shall inform the Provider thereof without delay. In any such event, the Provider shall have the right to terminate the Assignment with immediate effect or to attach conditions to a further continuation of the Assignment.
4. In the event of an industrial accident or an occupational disease occurring in respect of Personnel supplied to the Principal, the Principal shall ensure that a written report is made of it without delay, stating the facts and circumstances of the accident or the disease as accurately as possible. The Principal shall inform the Provider accordingly as soon as possible and, if legally required, the authorities.
Article 12 Remuneration
1. The Provider shall pay the salary and reimbursement of expenses, if applicable, directly to the Personnel supplied to it by the Provider.
2. Before the establishment of the Assignment, the Principal shall provide the Provider with the remuneration system pertaining to the job description as referred to in Article 4, paragraph 1 of these General Terms and Conditions.
Article 13 Fee
1. The Fee due by the Principal to the Provider for supplying Personnel shall be agreed in the Assignment with due observance of the provisions of these General Terms and Conditions.
2. The Fee agreed in the Assignment may be changed by the Provider in the event of circumstances resulting in an increase in the costs of the Personnel, in which event the increase of the Fee shall be in proportion to the increase in the costs referred to in this paragraph.
3. If any supplied Personnel is put into service in a lower position or rank than agreed between the Provider and the Principal upon entering into the Assignment, the initially agreed Fee shall be maintained, irrespective of the reason for the change.
4. If any supplied Personnel is required to work in a higher position or rank than agreed between the Provider and the Principal when entering into the Assignment, the initially agreed Fee shall be increased by the extra compensation which the Provider will be required to pay to the Personnel concerned as a result of the change in position/rank, irrespective of the reason for the change.
5. In the event that costs are incurred by the Provider as a result of the manner in which the business is run, and if these costs are not covered by the agreed Fee and could not be foreseen upon entering into the Assignment, like war risks, risks of rebellion and extra insurances, these costs shall be for the account of the Principal.
6. If during the term of the supply of Personnel the remuneration to be paid by the Provider to the Personnel is increased as a result of any requirements on working conditions, government measures or measures from any other body pursuant to any legal provision, or if the employer’s share in premiums or other social security contributions is increased as a result of social security legislation and/or tax laws, the Fee shall be increased in proportion to the amount of that increase, as from the time of that increase, and shall be due by the Principal accordingly.
7. Unless explicitly agreed otherwise in writing, the Fee as agreed in the Assignment shall be applicable to any special training or work instructions for the benefit of the Personnel, which the Personnel has attended.
Article 14 Invoicing
1. Invoices shall be sent on a monthly basis and on the basis of the manner of time reporting agreed with the Principal in the Assignment and the relevant provisions of these General Terms and Conditions.
2. In the Assignment, the Principal and the Provider may agree that time reporting shall take place by means of a time registration system, an electronic and/or automated system or by means of timesheets designed by or on behalf of the Principal.
3. The Principal shall ensure and be responsible for a correct, full and timely time reporting and, if Section 17 of the Law Remittance Income Tax Reduction and National Insurance Contributions ("Wet vermindering afdracht loonbelasting en premie voor de volksverzekeringen (WVA)") will be applicable, the provision of the IMO-crewlists to the Provider.
4. Prior to submitting the time reporting system by the Principal to the Provider, the Personnel affected by the time reporting system shall be given an opportunity to check the time reports. If and to the extent that the Personnel disputes the data recorded in the time reports, the Provider shall be entitled to determine the hours and costs in accordance with the information provided by the Personnel, save to the extent that the Principal can provide sufficient evidence for the accuracy of the data supplied by the Principal.
5. If, with due observance of the provisions of this Article, time reporting is performed by means of statements of expenses to be submitted by the Personnel, the Principal shall keep a copy of the statement of expense. In the event of deviations between the statement of expense submitted by the Personnel and the copy retained by the Principal, the Fee to be charged shall be based on the statement of expense submitted by the Personnel to the Provider.
6. Unless expressly agreed otherwise, the time reports shall be validated by means of a written confirmation from the Provider to the Principal, stating that the time reports have been received in good order.
7. If the provision of paragraph 3 is not complied with, the Provider shall have the right to send invoices based on the facts and circumstances known to the Provider.
Article 15 Payment
1. Unless expressly agreed otherwise in writing, the Principal shall at all times be required to pay each invoice from the Provider for the supply of Personnel within 14 calendar days after the date of dispatch of the invoice.
2. The Principal shall be discharged from liability by direct payment to Provider only.
3. If an invoice from the Provider is not paid within the term designated in the first paragraph of this Article, the Principal shall be in default as from the date of dispatch of the invoice concerned by operation of the law. As from that moment interest shall be due by the Principal on the amount outstanding at the rate of two percent per 28 days after invoice date.
4. All expenses, both costs of legal proceedings and extra-judicial costs, including costs of legal assistance, incurred on account of the recovery and collection of amounts not received in due time by the Provider, shall be for the account of the Principal. The extra-judicial costs shall be fixed at 15% of the claim, or any part thereof, which was not received in due time, unless a higher amount is awarded in legal or arbitration proceedings.
5. The Principal shall not be entitled to suspend its obligations towards the Provider, including the payment of invoices, at any time, or to set off the amount due against any claim which the Principal may have against the Provider at any time.
Article 16 Indemnity in case of direct
employment relationship with Personnel
1. Without the explicit written approval of the Provider and otherwise without prejudice to the provisions of the second paragraph of this Article, the Principal may not enter into a direct employment relationship with any Personnel supplied by the Provider during the Assignment and for a period of 12 (twelve) months after its termination. If this Article is not complied with the Principal shall forfeit the penalty referred to in paragraph 4 and 5 of this Article.
2. An employment relationship within the meaning of this Article shall also include each employment relationship in which the Personnel concerned is actually performing the same or similar activities for the Principal for which the Personnel was supplied by the Provider to the Principal.
3. Subject to the provisions of the first paragraph of this Article, the Principal shall not enter into an employment relationship with Personnel which is still employed by the Provider.
4. If the Principal, contrary to the provisions of paragraphs 1 and 2 of this Article, enters into an employment relationship with Personnel supplied to the Principal on the basis of the Assignment and if that Personnel has not worked 2080 hours for the Principal in the execution of the Assignment, the Principal shall pay the Provider a compensation amounting to 25% of the last applicable Fee on 2080 hours minus the hours already worked by that Personnel on the basis of the Assignment.
5. If the Principal, contrary to the provisions of paragraphs 1 and 2 of this Article, enters into an employment relationship with Personnel supplied to the Principal on the basis of the Assignment for a limited period of time, the Principal shall pay the Provider a compensation amounting to 25% of the last applicable Fee on the remaining duration of the Assignment.
6. All above paragraphs don’t apply to Personnel supplied on recruitment basis.
Article 17 Liability Principal and indemnity
1. Any and all liability in respect of Personnel, insofar as it involves a freelancer, shall be explicitly excluded, unless in the event of intent or gross negligence on the part of the Provider.
2. Any and all liability in respect of Personnel not being a freelancer is also excluded, unless the Principal can provide evidence for the fact that the Provider had control over the activities of the Personnel concerned at the time of committing the damaging fact, and, consequently, could have prevented the relevant fact.
3. Any and all liability for the Provider resulting from the Assignment shall at any rate, for each individual event, be limited to 50% of the amount already invoiced to the Principal in the year prior to the damage causing event, on account of the Personnel concerned who caused the damage. The Provider shall never be liable for any indirect loss, including consequential loss.
4. The Principal shall indemnify the Provider against all judgments on that account.
5. The Principal shall compensate the Personnel for and indemnify the Provider against any and all damage incurred by the Personnel in the performance of its activities, if and insofar as the Principal and/or Provider are liable for it pursuant to Sections 7:658 and/or 7:611 of the Dutch Civil Code. If an industrial accident causes the death of Personnel supplied to the Principal, the Principal shall be required to compensate the damage including costs, as well as the actual costs of legal assistance, in accordance with Section 6:108 of the Dutch Civil Code, to the persons stated in that Section.
6. The Provider shall in no event be liable for any obligations towards the Principal, Personnel employed by the Principal, and third parties, entered into or otherwise established with regard to the Personnel supplied by the Provider. The Principal shall indemnify the Provider against all claims on that account.
7. The Principal shall ensure that the Provider, as well as the Personnel supplied by the Provider, who has been required to work on or on board of vessels or contractors equipment for the performance of its activities, or when driving vehicles on Assignment of or owned by the Principal, are included in the insurance policy of the vessel, vehicle or contractors equipment concerned, or in the corresponding umbrella insurance policy or policies, including third party liability.
8. The Principal shall be sufficiently insured against
liability on account of the provisions of this Article. The
Principal shall provide evidence of its insurance at the
Article 18 Indemnity in case of wrongful dismissal
1. If the Principal terminates the Assignment prematurely in accordance with the provisions of Article 19 on account of Personnel’s behaviour, the Principal shall provide the Provider with all necessary information and evidence needed to effectuate the dismissal of the Personnel concerned.
2. If the relevant authorities find that the dismissal and, consequently, the premature termination of the Assignment, is wrongful or, as the case may be, unlawful, the Principal shall indemnify the Provider in full; both the compensation in accordance with the Fee regarding the period during which the activities would normally have been performed, and all costs of extra salary, surcharges, interest, lawyer’s fees, costs of proceedings, and (other) compensations, if any, which the Provider is or has been required to pay or has been found to be due to Personnel as a result of the premature termination, shall be for the account of the Principal in that case.
3. With regard to any justifiable dismissal of Personnel supplied to the Principal, the Provider shall not be liable in any way for any damage incurred by the Principal as a result of that dismissal.
Article 19 Dissolution
1. Each party shall have the right to dissolve the Assignment out of court by means of a registered letter, whenever the other party remains in default of fulfilling the obligations pursuant to the Assignment, provided that prior to the dissolution notice of default is given, granting a reasonable term to remedy the default.
2. Each party shall be entitled to dissolve the agreement with immediate effect and without notice of default being required, if:
a. the other party applies for a (provisional) moratorium or if a (provisional) moratorium is granted to that party;
b. the other party files a petition for its winding-up or if a winding-up order has been made;
c. the business of the other party goes into liquidation;
d. the other party discontinues its present business;
e. a situation referred to in Article 10, Article 11 paragraph 3, Article 15 paragraph 3 or Article 19 paragraph 3 of these General Terms and Conditions occurs.
3. If at the time of dissolution of the Assignment the Principal has already received any performance regarding the execution of the Assignment, the Principal may dissolve the Assignment only partly, i.e. exclusively for the part which has not been executed by or on behalf of the Provider. In any such event the Principal shall still be fully required to pay to the Provider the performance already received from the Provider in accordance with the agreed Fee.
4. The dissolution of the Assignment shall imply termination of the supply of Personnel.
Article 20 Changes
1. The Provider reserves the right at any time to modify this Agreement and to impose new or additional terms or conditions on your use of the Service. Such modifications and additional terms and conditions will be communicated to you and, if accepted, will be effective immediately and will be incorporated into this Agreement. In the event that you refuse to accept such changes, the Provider will have the right to terminate the Agreement.
Article 21 Force majeure
1. In the event of force majeure on the part of the Provider or the Principal, the obligations pursuant to the Assignment shall be suspended for the duration of the force majeure. Force majeure shall in any case be deemed to include: strikes, sit-ins, blockades, embargoes, government measures, war, revolutions and/or similar situations, power failure, failure of electronic communication systems, fire, explosions and other catastrophes, floods, earthquakes and other natural disasters, as well as serious diseases of an epidemiological nature inflicted upon Personnel.
2. In any of the situations referred to in the first paragraph the party claiming applicability of that paragraph shall immediately inform the other party of the occurrence of a force majeure situation.
3. If the force majeure situation continues for more than three months or if it is established that it will continue for more than three months, each party shall be entitled to terminate the Assignment prematurely without notice of termination being required.
Article 22 Certificates / Inspection
Unless agreed otherwise in writing, the Provider shall ensure that its Personnel has been provided with all certificates and/or valid inspection certificates necessary for the activities to be performed. The Provider must be informed of these requirements before the commencement of the activities. The Principal shall not be entitled to make Personnel perform activities for which it is not sufficiently trained or insufficiently instructed.
Article 23 Identification and personal
1. Upon commencement of the supply of the Provider’s Personnel, the Principal shall establish the Personnel’s identity by means of a legally permitted original identification document and shall keep a copy thereof in its records.
2. The Principal shall keep the personal details of Personnel, which have become known to it within the framework of the supply of Personnel, confidential, and shall process that information with due observance of the provisions of the Personal Data Protection Act ("Wet bescherming Persoonsgegevens").
3. The Provider shall not be liable for penalties or liabilities imposed on the Principal for not having fulfilled its obligations as referred to in the preceding paragraphs.
Article 24 Secrecy
The Provider and the Principal, including their staff, shall observe strict secrecy in respect of the information provided to it within the framework of the Assignment, unless a proper performance of the Assignment is hindered by the observance of secrecy or unless the information must be disclosed by virtue of a legal obligation.
Article 25 Applicable law and Competent
1. These General Terms and Conditions, as well as any and all Assignments and agreements resulting from them, shall be governed by Dutch law exclusively.
2. Any disputes arising from these General Terms and Conditions, Assignments or agreements resulting from them, shall in the first instance be brought exclusively before the competent court in Amsterdam.
Article 26 Other provisions
1. In the event of a strike in the business of the Principal, both the Provider and the Principal shall be prohibited to have supplied Personnel perform activities which are normally performed by the participants of the strike.
2. Any arrangements made contrary to these General Terms and Conditions shall not be legally valid, unless its applicability is agreed explicitly between the parties in writing.
3. If a Collective Labour Agreement ("CAO") applies at the time of the conclusion of the Assignment, and the provisions of that CAO are in conflict with the provisions of these General Terms and Conditions, the General Terms and Conditions shall prevail, unless this is not permitted by virtue of peremptory law.
4. If any provision included in these General Terms and Conditions is null and void or nullified, the remaining provisions shall remain in full force and for the null and void or nullified provision a new provision shall be agreed, with due observance of the purpose and intent of the null and void or nullified provision.