Aviso Agency

Client Terms and Conditions.

 

This agreement (this “Agreement”) is made between Aviso Limited (“Aviso”) and the individual, partnership, company or other incorporated or unincorporated legal entity submitting this application (“You”).

1) Introduction

a) Aviso operates an employment agency and subject to the terms and conditions of this Agreement will seek candidates (“Candidate(s)”) for employment vacancies which You register with Aviso from time to time in relation to any yacht or vessel and or related activities.

b) Aviso will introduce You to any such Candidates as appear to Aviso to be suitable to the vacancy You register. Where such an introduction leads to the engagement or use of the Candidate by You, the employment or engagement agreement or arrangement will made be between You and the Candidate.

2) Commencement and Duration

This Agreement will commence at the date and time of the written confirmation from Aviso to the Employer Client confirming acceptance of the application and will continue in force until and unless terminated by either party in accordance with paragraph 10 below.

3) Recruitment Services

a) In consideration for Your payment of the Introduction Fee Aviso will provide Recruitment Services to You in accordance with the terms and conditions of this Agreement.

b) When You register a Vacancy with Aviso, Aviso will endeavour to Introduce to You a Candidate suitable to carry out work of the nature which you describe as relevant to the Vacancy. Aviso do not represent, warrant or undertake to find a suitable or any Candidate for each Vacancy.

c) When Introducing a Candidate to You for employment, Aviso is acting as an employment agency as defined in the Regulations.

d) Aviso will seek in relation to each Candidate it Introduces to You:

i) to ensure that the Candidate has given his consent for the submission of his or her details;

ii) to provide access to such of the Candidate’s relevant details as Aviso has; and

iii) to provide at Your request, and subject to Aviso being permitted to obtain and or disclose them to you, details and or copies of documents which Aviso has in its possession that pertain to the Candidate’s:

(1) any relevant qualifications or authorisations; and

(2) any non-confidential references.

e) If more than one agency submits details of the same Candidate to You, the agency which first submitted the details (the “First Agency”) will be deemed to have Introduced the Candidate to You. If You engage that Candidate You will be due to pay the Introduction Fee to Aviso if Aviso is the First Agency.

f) By registering or notifying Aviso of a Vacancy You authorise Aviso to advertise that Vacancy.

g) Aviso will not include Your name or logo or trademark in any advertisement of a Vacancy without Your prior agreement.

4) Fees and payment

a) You will pay an Introduction Fee to Aviso in respect of each Candidate Engaged by You. The Introduction Fee will be calculated as set out in the Schedule at the end of this Agreement.

b) The Introduction Fee will become due immediately upon the commencement of an Engagement.

c) The payment of the Introduction Fees will be made by You to Aviso within 14 days of the date of Aviso’s invoice.

d) The Introduction Fee charged for the Introduction of any Candidate for an Engagement is applicable for one Engagement only. For each additional Candidate Introduced by Aviso and Engaged by You, a further Introduction Fee will be payable.

e) The Introduction Fees are for the Introduction of Candidates only and do not include any salary due to any Candidate. Unless the Candidate is self-employed, it is Your responsibility to account for any tax and National Insurance contributions attributable to the Candidate.

f) Any charges for advertising, and all other charges, must be agreed separately in writing before the advertisement is placed and will be payable irrespective of whether a Candidate is Engaged.

g) If, after an offer of employment has been accepted by a Candidate, You withdraw the offer, You will not be liable to Aviso for any Introduction Fee or cancellation fee if you have withdrawn the offer no later than 14 days following the Candidate’s acceptance. If you withdraw the offer 15 or more days following the Candidate’s acceptance You will pay the Introduction Fee to Aviso at a reduced rate which will be equal to 25% of the Introduction Fee.

h) You will also be liable to pay an Introduction Fee if, within 6 months following a Candidate’s unsuccessful application to You via Aviso either:

i) You, without notifying Aviso, Engage that Candidate in any capacity; or

ii) You or Your employee, agent or subcontractor refers or Introduces that Candidate to a third party, including any Affiliate of Yours, and that third party Engages the Candidate in any capacity

i) All amounts stated are exclusive of Value Added Tax and all other applicable taxes. In addition to the amounts stated You shall be liable to pay to Aviso all Value Added Tax and all other applicable taxes at the rate in force at the time You are due to make the payment. The precise details of the tax and the amount of tax may differ according to Your location and or the location of the Vacancy and with changing tax regulations and rates from time to time.

j) If You do not make a payment by the date stated in an invoice or as otherwise provided for in these Terms and Conditions, then Aviso will be entitled:

i) to charge interest on the outstanding amount at the rate of 8% a year above the base lending rate of the Bank of England accruing daily;

ii) to require You to pay, in advance, for any Recruitment Services (or any part of the Recruitment Services) which have not yet been performed; and

iii) not to perform any further Recruitment Services (or any part of the Recruitment Services).

k) When making a payment You will quote relevant reference numbers and the invoice number.

5) Replacement Policy

a) Subject to paragraph 5 b) below, if within 60 days of the commencement of a Permanent Engagement:

i) the Candidate leaves Your employment and or the Engagement is terminated whether voluntarily or by reason of dismissal; and

ii) You have paid the relevant Introduction Fee in full; an

iii) You notify Aviso in writing that you wish to find a replacement Candidate

Aviso will seek to Introduce you up to two potential replacement Candidates for you to consider.

b) If Aviso is able to Introduce you to such potential replacement Candidates and You Engage one of these Candidates for this Vacancy within 60 days of that Introduction You will not be liable to pay Aviso an Additional Introduction Fee for that Engagement.

c) If You Engage a replacement Candidate for any other Vacancy You will be liable to pay an additional Introduction Fee to Aviso.

d) The replacement policy described in this paragraph 5 above shall not apply where the Candidate leaves Your employment and or the Engagement is terminated as a result of:

i) A change in captain; or

ii) A change in the legal and or beneficial ownership of the yacht or vessel; or

iii) A change in the responsibilities of the Candidate; or

iv) A decrease in the salary or remuneration of the Candidate; or

v) A material change in schedule from that described in connection with the Vacancy and or at the commencement of the Engagement.

6) Your obligations

a) You acknowledge and agree that by notifying Aviso of a Vacancy You authorise Aviso to:

i) act on Your behalf in relation to that Vacancy; and

ii) to advertise that position, subject to the provisions of clause 3 g).

b) When requesting Aviso to Introduce Candidates for a vacancy, You will promptly provide to Aviso the following information:

i) Your full corporate name, address and registered number, or (if it is not incorporated) its full business and trading name and address, and the nature of its business;

ii) the nature of the vacancy, including the type of work involved, its location, the hours of work, the commencement date and the likely duration;

iii) any risks to health and safety known to You and the steps taken by You to prevent or control such risks;

iv) the experience, training, qualifications and any authorisations which are required by You, including any qualifications or authorisations required by law or any applicable professional body;

v) any expenses payable by or to the Candidate;

vi) the minimum rate of remuneration, the intervals of payment and any other benefits;

vii) the length of notice to which the Candidate would be entitled to receive or be required to give for termination of employment;

viii) whether You intends to engage the Candidate otherwise than as an employee on a contract of service;

ix) whether the vacancy involves working with vulnerable persons, including persons under the age of 18 or persons in need of care or attention by reason of old age, infirmity or any other circumstances

x) all such additional information as Aviso may reasonably request in relation to the Vacancy.

c) You will satisfy yourself as to the suitability of any Candidate for the Vacancy for which the Candidate has been Introduced.

d) You agree that it is Your responsibility to:

i) take up and verify references relating to the Candidate’s qualifications, skills, character and experience;

ii) check the validity of the Candidate’s qualifications;

iii) ensure, where appropriate, that the Candidate is capable of operating any equipment or machinery to the necessary level;

iv) obtain any work or other permits needed by the Candidate; and

v) ensure that the Candidate satisfies any medical requirements or other qualifications that may be appropriate or required by law;

vi) to maintain for each Candidate that You Engage a safe working environment and to maintain all relevant vessels free from drugs and in all other ways compliant with all laws and regulations, including those relating to health and safety issues, which apply to the vessels and or to You in relation to the vessels.

e) You agree that when using any Aviso Site You will comply with all the terms and conditions relating to use of that Aviso Site that are posted on that Aviso Site at the time of each such visit by You.

f) You will notify Aviso immediately on the occurrence of the any of the following events:

i) a Candidate accepts an offer of employment from You;

ii) the commencement of an Engagement by a Candidate;

iii) If You effectively Introduce any Candidate to any third party, whether directly or indirectly, including any Affiliate of You, and that Introduction results in an Engagement of the Candidate by that third party;

iv) Any change in captaincy or of 50% or more of the crew;

v) Any material change in the schedule of the vessel from that provided with the Vacancy or immediately prior to the vessel’s departure;

vi) You are to lend money to the Candidate in order to meet travel or other expenses and you will notify Aviso of the terms of such a loan and confirm that You will seek to recover only the net amount from the Candidate.

g) You agree that on any occasion when You make any offer of an Engagement to a Candidate You shall be deemed thereby to have confirmed to Aviso that You are not aware of any matter which would cause detriment to the Candidate or You if the Candidate accepted the Engagement.

7) Non- Solicitation

a) You undertake not to employ or seek to employ any member of Aviso’s staff. If any member of Aviso’s staff nevertheless accepts an Engagement within 6 months of leaving Aviso’s employment, You will pay an Introduction Fee to Aviso as if that member of staff had been Introduced to You by Aviso.

8) Confidentiality

a) All Introductions are confidential. All work undertaken by Aviso for You in respect of the Introduction of a Candidate to You will be for Your private and confidential use only and should not be reproduced in whole or in part or relied upon by third parties for any use whatsoever, without the express written authority of Aviso.

b) Each Party (‘Receiving Party’) will keep the confidential information of the other Party (‘Supplying Party’) confidential and secret, whether disclosed to or received by the Receiving Party. The Receiving Party will only use the confidential information of the Supplying Party for the Purpose and for performing the Receiving Party’s obligations under this Agreement. The Receiving Party will inform its officers, employees and agents of the Receiving Party’s obligations under the provisions of this paragraph 8 (b) and ensure that the Receiving Party’s officers, employees and agents meet those obligations.

c) The obligations of Clause will not apply to any information which:

i) was known to or in the possession of the Receiving Party before it was provided to the Receiving Party by the Providing Party;

ii) is, or becomes, publicly available through no fault of the Receiving Party;

d) is provided to the Receiving Party without restriction on disclosure by a third party who did not breach any confidentiality obligations by making such a disclosure;

e) was developed by the Receiving Party, or on its behalf by a third party who had no direct access to, or use or knowledge of the confidential information supplied by the Supplying Party; or

f) is required to be disclosed by order of a court, regulator or government agency of competent jurisdiction.

g) The obligations in this paragraph 8 will survive termination of this Agreement for a period of 3 years.

9) Warranties, liability and indemnities

a) You accept and agree that Aviso gives no warranty as to the suitability of any Candidate for any Vacancy.

b) Neither Aviso nor any of its staff will be liable to You for any loss, injury, damage, expense or delay incurred or suffered by You arising directly or indirectly from or in any way connected with the Introduction to or the Engagement by You of a Candidate, unless such loss, damage, costs or expenses are the direct result of the negligent acts or omissions of Aviso. In particular, but without limiting the generality of the foregoing, Aviso will not be liable for any loss, injury, damage, expense or delay arising from or in any way connected with:

i) any failure of the Candidate to meet Your requirements for all or any of the purposes for which the Candidate is required by You;

ii) any act or omission of a Candidate, whether wilful, negligent, fraudulent, dishonest, reckless or otherwise; or

iii) any loss, injury, damage, expense or delay suffered by a Candidate.

c) Except in the case of death or personal injury caused by Aviso’s negligence, the liability of Aviso under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise howsoever will not exceed the Introduction Fee(s) paid or due to be paid by You to Aviso under this Agreement.

d) Aviso will not be liable to You whether in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by You of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill.

e) You will indemnify and hold harmless Aviso from and against all Claims and Losses arising from loss, damage, liability, injury to Aviso, its employees and third parties, by reason of or arising out of:

i) any loss, injury, expense or delay suffered or incurred by a Candidate, however caused, and/or

ii) any loss, injury, damage, expense or delay suffered or incurred by anyone arising directly or indirectly from or in any way connected with the acts and omissions of a Candidate, whether wilful, negligent, fraudulent, dishonest, reckless or otherwise,

iii) that arises directly or indirectly out of or in any way connected with arising out of or in any way connected with the Introduction, Engagement or use of a Candidate, the withdrawal by You of a Vacancy, any information supplied by You to Aviso or Your breach of these Terms and Conditions. ‘Claims’ will mean all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise), and ‘Losses’ will mean all losses including without limitation financial losses, damages, legal costs and other expenses of any nature whatsoever.

f) Each of the Parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law. Nothing in this Agreement excludes liability for fraud.

10) Termination

a) Without prejudice to the other remedies or rights either party may have You or Aviso may terminate this Agreement, at any time by serving at least 14 days’ notice in writing upon the other.

b) Either party may terminate this agreement immediately upon service of written notice to the other (‘Other Party’):

i) if the Other Party is in material breach of its obligations under this Agreement and, if the breach is capable of remedy within 14 days, the breach is not remedied with 14 days of the Other Party receiving notice which specifies the breach and requiring the breach to be remedied; or

ii) if the Other Party becomes insolvent or if an order is made or a resolution is passed for the winding up of the Other Party (other than voluntarily for the purpose of solvent amalgamation or re-construction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the Other Party’s assets or business, or if the Other Party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.

11) The notice will take effect as specified in the notice.

12) On termination of this Agreement, You will pay for all Recruitment Services provided up to the date of termination, and for all expenditure falling due for payment after the date of termination from commitments reasonably and necessarily incurred by Aviso for the performance of the Recruitment Services prior to the date of termination.

13) Force Majeure.

a) Neither party will have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances will promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than six months, either Party may terminate this Agreement by written notice to the other Party.

14) Variation

a) No amendment or variation of this Agreement will be valid unless confirmed as agreed, in writing, by an authorised signatory of each Party.

15) Assignment

a) You may not assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of Your rights and or obligations under this Agreement without Aviso’s prior written agreement.

16) Whole Agreement.

a) This Agreement together with all documents referred to in it comprises the whole agreement between You and Aviso in respect of Your appointment of Aviso to provide Recruitment Services to You and supersedes and replaces any prior written or oral agreements, representations or understandings relating to such subject matter.

17) Waiver

No failure or delay or partial failure or delay by Aviso in exercising any right, power or privilege under this Agreement will reduce or operate as a waiver of that right power or privilege by Aviso.

18) Relationship

This Agreement will not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between You and Aviso other than the contractual relationship expressly described in this Agreement.

19) Severability

If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and will not in any way affect any other circumstances of or the validity or enforcement of this Agreement.

20) Notices

a) Any notice to be given under this Agreement will be in writing and will be sent by first class mail or email to the address of the relevant party provided that address is either:

i) (in the case of first class mail) that party’s registered or main office address;

ii) (in either case) an address which that party has supplied for the purposes of communication in relation to this Agreement, and which address they have not advised in writing is no longer maintained by them.

b) Any notice will be deemed served two days following the date of posting in the case of first class mail, and immediately upon the date and time of a “Delivered” receipt from the correct email address in the case of notice served by email.

21) Third parties

a) Subject to paragraph 21 b) for the purposes of the Contracts (Rights of Third Parties) Act 1999 this Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.

b) You and Aviso agree that any Affiliate of Aviso may enforce the rights accruing to Aviso under this Agreement.

22) Applicable law and jurisdiction

The validity, construction and performance of this Agreement is be governed by English law and will be subject to the exclusive jurisdiction of the English courts to which the Parties submit.

23) Definitions and Interpretation

a) In this Agreement unless the context otherwise requires:

i) words importing any gender include every gender;

ii) words importing the singular number include the plural number and vice versa;

iii) words importing persons include firms, companies and corporations and vice versa;

iv) the headings to the clauses paragraphs of and schedules to this Agreement are not to affect the interpretation;

v) any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment.

b) In these Terms and Conditions, the following words will have the following meanings:

Word/ phrase Shall mean

Aviso

Aviso Limited a private limited company registered in England under number 0791629, whose registered office address is C/o Rae Nemazee LLP, 2 Barons Gate, 33-35 Rothschild Road, London, England, W4, 5HT

‘Affiliate’

in relation to a Party, any person that Controls, is Controlled by, or is under common Control with that Party;

‘Candidate’

a person Introduced by Aviso to You to be considered for an Engagement;

‘Control’

in relation to a Party, direct or indirect beneficial ownership of more than 50% of the share capital, stock or other participating interest carrying the right to vote or to distribution of profits of that Party, as the case may be;

‘Engage(s)’ (or ‘Engagement’ or ‘Engaged’)

the employment, hire or other use, directly or indirectly and whether under a contract of service or contract for services or otherwise, and/or whether on a permanent, temporary or other basis, of a Candidate by or on behalf of You;

“Gross Salary”

the total amount which you pay to the Candidate in respect of the Engagement, including all wages, fees, bonuses and benefits

‘Introduce’ (or ‘Introduction’ or Introduced)

the provision to YOu of a curriculum vitae or any other details, whether written or oral, of a Candidate whether or not the You had knowledge of that Candidate before the Introduction;

“month”

calendar month

‘Parties’ or parties

Aviso and You, and ‘Party’ or party will mean either one of them;

“Permanent Engagement”

An Engagement or a Vacancy for an Engagement which is intended to and or lasts for at least 90 days;

‘Recruitment Services’

search for Candidates for vacancies that You have notified to Aviso and Introduction of them to You by Aviso;

‘Regulations’

the Conduct of Employment Agencies and Employment Businesses Regulations 2003 as may be amended from time to time;

“Temporary Engagement”

An Engagement or a Vacancy for an Engagement which is intended to last for 89 days or less. Where an Engagement is expected to be a Temporary Engagement but continues for 90 days or more it will be deemed a Permanent Engagement for the calculation and payment of the Introduction Fee.

“Vacancy” a vacancy, role or other manner of opportunity for engagement, employment and or use by You for which You are seeking suitable candidates and which you notify and or register with Aviso

SCHEDULE

Introduction Fee

1) The Introduction Fee for an Engagement shall be calculated and shall fall due for payment as set out in the table below:

Type of Engagement Calculation of Introduction Fee Introduction Fee shall fall due
Permanent Engagement

An amount equal to 75 (Introduction Fee/100) Gross Salary for 1 month

In 2 instalments:

1) 25 x (Introduction Fee/ 100) shall be due on commencement of the Engagement;

2) 50 x (Introduction Fee/100) shall be due 60 days from the commencement of the Engagement

Temporary Engagement

The greater of:

1) €200; or

2) 15 x (Gross Salary for the whole Temporary Engagement/ 100)

The whole Introduction Fee shall be due immediately upon completion or termination for any reason of the Temporary Engagement.

 

2) Value Added Tax and or any other applicable sales tax due in relation to the Introduction Fee shall fall due at the same time as the Introduction Fee and where the Introduction Fee is payable in instalments in the same proportion as each instalment is to the whole.