Terms & Conditions | Active Ants UK (2024)

October 2020

Article 1: General

1.1These general terms and conditions apply to all offers and quotations submitted by Active Ants B.V. with its registered office inNieuwegein(hereinafter referred to as Active Ants), and to all agreements concluded between Active Ants and any natural person or legal entity (hereinafter referred to as the other party) to which Active Ants has declared the terms and conditions applicable, insofar as the parties have not explicitly deviated from these terms and conditions in writing.

1.2Any general purchase conditions of the other party shall only apply if it has been explicitly agreed in writing that such conditions shall apply to the agreement between the parties to the exclusion of the present terms and conditions.

1.3If any provision of these terms and conditions is null and void or is voided, the other provisions shall remain fully in effect. Active Ants shall draw up new provisions to replace the void or voided ones, taking into account the purpose and meaning of the original provisions as far as possible.

1.4In the event of any uncertainty regarding one or more provisions of these general terms and conditions, such clauses should be interpreted according to the spirit of these provisions.

1.5If a situation arises between the parties that is not provided for in these general terms and conditions, the situation should be assessed according to the spirit of these general terms and conditions.

1.6These terms and conditions also apply to agreements with Active Ants for the performance of which Active Ants must engage the services of third parties.

1.7If Active Ants does not always require the strict observance of these terms and conditions, this does not mean that the provisions thereof are not applicable, or that Active Ants waives its right to require strict observance of the provisions of these terms and conditions in other cases.

Article 2: Offers and quotations

2.1The submission of a quotation, estimate, delivery times or similar information, whether or not designated as an offer, shall not entail an obligation on the part of Active Ants to enter into an agreement with the other party.

2.2All offers, quotations and estimates submitted by Active Ants are non-binding unless explicitly stated otherwise in writing or a period for acceptance is stipulated, and can only be accepted without any deviations. An offer shall in any case be deemed to have been rejected if it is not accepted within one month.

2.3If a non-binding offer or quotation submitted by Active Ants is accepted by the other party, Active Ants shall be entitled to withdraw the offer within 5 days of receiving the acceptance.

2.4Active Ants cannot be held to its quotations or offers if the other party could reasonably have been expected to understand that the quotations or offers or any part thereof contain an obvious mistake or error.

Article 3: Price

3.1All prices are quoted in euros and exclude turnover tax (VAT) and duties levied by the government, unless agreed otherwise in writing.

3.2The price Active Ants has quoted for the goods or services to be provided applies exclusively to the goods or services according to the agreed specifications.

3.3If the other party is required to make regular payments, Active Ants is entitled to adjust the applicable prices and rates in writing subject to a minimum of three months’ notice. If the other party does not wish to agree to such an adjustment, the other party shall be entitled to terminate the agreement within 30 days of receiving notice, with effect from the date on which the adjustment would come into force.

3.4A combined offer does not oblige Active Ants to supply part of the total goods or services for the sum quoted for this part in the offer or for a corresponding proportion of the total quoted price.

3.5Active Ants reserves the right to increase all prices and rates. Active Ants also has the right to regularly adjust its prices according to the NEA index. It should be explicitly noted that price increases do not constitute grounds for early termination. Price increases and indexation are an integral part of the agreed price.

Article 4: Payment

4.1Unless agreed otherwise, the other party must pay the price and other amounts due pursuant to the agreement within 14 days of the invoice date, without any right to discount, setoff or suspension. In the event of failure to pay on time, the other party shall be in default without further notice of default being required from Active Ants.

4.2If the other party disputes all or part of the invoice, the other party must notify Active Ants in writing, stating reasons, within 5 days of receiving the invoice. Disputing all or part of the invoice shall not suspend the other party’s payment obligation.

4.3If partial deliveries have been agreed, after delivery of the first part Active Ants shall be entitled to demand not only payment of this part but also of the costs incurred for the entire delivery.

4.4The other party shall be obliged, at all times and regardless of the payment terms agreed, to provide security for the payment of the amounts due to Active Ants pursuant to the agreement at the first request of Active Ants. The security provided must be such that the amount owed, plus any interest thereon and associated costs, is adequately covered and that Active Ants will be able to recover from the security without difficulty. Any security that subsequently becomes inadequate shall be supplemented up to an adequate security at the first request of Active Ants.

4.5Active Ants is entitled to ask the other party to make an advance payment for the work it is to carry out and shall subsequently only be obliged to continue this work once the other party has made this advance payment.

4.6If the other party fails to pay in good time as referred to in paragraph 1 of this article, it shall, as of the invoice date and without any demand or notice of default being required, owe interest on the amount owed at the statutory commercial interest rate or, where applicable, the statutory interest rate, due to the delay in payment of this amount.

4.7In the event of failure to pay on time as referred to in paragraph 1 of this article, the other party shall be obliged to pay any and all judicial and extra-judicial collection costs (in the latter case determined in accordance with the Extrajudicial Collection Costs (Standards) Act) in addition to the amount payable and the relevant interest due.

4.8Regardless of any designation, payments shall in the first instance be deemed to have been made in satisfaction of the interest and costs owed, and subsequently in satisfaction of the longest outstanding invoice.

Article 5: Confidential data and privacy

5.1Both the other party and Active Ants shall guarantee that all data received from either party that is known or should be known to be of a confidential nature remains confidential, unless there is a statutory obligation to disclose such information. The party receiving the confidential data shall use this data exclusively for the purpose for which it has been provided. Information shall in any event be considered confidential if any party has designated it as such.

5.2The other party indemnifies Active Ants against claims by individuals whose personal data has been recorded or is processed in the context of personal data records held by the other party or for which the other party is otherwise responsible under the law.

Article 6: Reservation of title and rights, right of retention and right of pledge

6.1All goods supplied to the other party shall remain the property of Active Ants until all amounts owed by the other party in respect of the goods supplied or to be supplied or services provided or to be provided under the agreement, and all other amounts owed by the other party as a result of failure to meet its payment obligations have been paid to Active Ants in full.

6.2Where relevant, rights shall in all cases be granted or transferred to the other party on condition that the other party pays the agreed amounts on time and in full.

6.3Active Ants may retain the received or generated goods, products, property rights, data, documents, databases and final and interim results of the services provided by Active Ants in the context of the agreement, despite any obligation to surrender, until such time as the other party has paid all amounts owed to Active Ants.

6.4The other party is obliged to establish a right of pledge on (i) any movable items of which it is the owner and (ii) the conditional ownership of any movable items of which it is the title-holder, in the event that it surrenders any such movable items to (according to the legal terminology: ‘brings under the control of’) Active Ants.

6.5The right of pledge referred to in this article shall be established by means of surrendering the property to Active Ants.

6.6The right of pledge referred to in this article shall serve as security for any and all amounts owed by the other party to Active Ants now or in the future.

6.7The other party declares that it has not established any rights of pledge, in relation to any party other than Active Ants, on the movable items or the conditional ownership of movable items it surrenders to Active Ants and undertakes to refrain from establishing any right of pledge in relation to any party other than Active Ants after the items have been surrendered to Active Ants.

6.8Active Ants undertakes to only sell the pledged items in the event that the other party is put into liquidation, granted a provisional or definitive suspension of payment, or if the statutory debt restructuring scheme is declared applicable to it, or if the court has ruled that the client is in default.

6.9The other party is obliged to notify Active Ants immediately in writing if a third party lays claim to (i) a movable item belonging to the other party to which Active Ants has been granted retention of title or (ii) a movable item or the conditional ownership of a movable item to which Active Ants has been granted right of pledge.

Article 7:Transport, storage and risk

7.1Unless agreed otherwise in writing, the method of transport, shipment, packaging etc. shall be determined by Active Ants. The foregoing shall in all cases take place at the expense and risk of the other party; including where delivery carriage paid has been agreed and also where a distributor has stipulated that all transport damage shall be at the expense and risk of Active Ants. Active Ants shall therefore under no circ*mstances be liable for damage, of any kind and in any form, related to transport to delivery.

7.2Active Ants shall not be responsible for storing the goods to be supplied, unless explicitly agreed otherwise in writing. Any storage carried out by Active Ants shall take place at the expense and risk of the other party.

7.3The goods to be processed and/or supplied by Active Ants shall remain at the expense and risk of the other party. Active Ants is therefore not liable for any damage relating to the goods stored. The other party is obliged to arrange adequate insurance cover in this situation.

Article 8: Delivery date

8.1Any delivery date specified by Active Ants shall always be an indication only, unless it is expressly stated in writing that the date is a final delivery date. Active Ants shall only be considered to be in default, also with respect to an agreed final delivery date, after the other party has declared it to be in default in writing. In this case Active Ants must be granted a reasonable period in which to implement the agreement.

8.2Active Ants shall no longer be bound by an agreed delivery date, final or otherwise, if the other party makes or wishes to make any changes to the work specifications.

8.3During the performance of the agreement by Active Ants, the other party is obliged to do everything that is reasonably required and desired to ensure that Active Ants is able to deliver on time.

8.4If the other party fails to comply with the provisions of the previous paragraph of this article and paragraph 4 of article 4 (with regard to the provision of security), any agreed final delivery date shall no longer be binding and the other party shall be in default without written notice of default being required from Active Ants. In that case Active Ants shall, without prejudice to the rights to which it is entitled pursuant to the law, be entitled to suspend the performance of the agreement until such time as the other party has cured this default. Active Ants shall then implement the agreement within a reasonable period of time.

Article 9: Intellectual or industrial property rights

9.1All intellectual and industrial property rights to software, databases, hardware or other materials such as designs or documentation, including preparatory materials, developed or provided pursuant to the agreement shall be vested exclusively in Active Ants, its licensors or its suppliers. The other party shall only acquire the rights of use explicitly granted under these terms and conditions and the law. Any other or further rights of the other party to reproduce software, websites, databases or other materials are excluded. Any right of use granted to the other party shall be non-exclusive and non-transferrable to third parties.

9.2If, contrary to the previous paragraph, Active Ants is willing to undertake to transfer an intellectual or industrial property right, such an undertaking can in all cases only be entered into explicitly in writing. If the parties explicitly agree in writing that intellectual or industrial property rights in relation to software, databases, hardware or other materials developed specifically for the other party shall be transferred to the other party, this shall not affect Active Ants’ entitlement to use and exploit any components, designs, documentation, works, programming languages and the like underlying that development without any restriction for other purposes, either for itself or for third parties. Any transfer of intellectual or industrial property rights shall also not affect the right of Active Ants to undertake, for its own benefit or that of a third party, developments that are similar to those that have been or are undertaken for the other party.

Article 10: Ownership of the means of production etc.

10.1All items produced by Active Ants such as information carriers, computer software, databases and peripheral equipment, shall remain the property of Active Ants, even if they have been stated as separate items on the quotation, in the offer or on the invoice.

10.2Active Ants is not obliged to deliver the items referred to in paragraph 1 to the other party.

10.3Active Ants is not obliged to store the items referred to in paragraph 1 of this article for the other party. If Active Ants and the other party agree that these items shall be stored by Active Ants, this shall take place for a maximum period of one year and without any guarantee from Active Ants that the items are suitable for repeated use.

Article 11: Suspension, termination and early termination of the agreement

11.1Active Ants is entitled to suspend the fulfilment of its obligations or to terminate the agreement, if:

the other party has failed to fulfil the obligations stipulated in the agreement in full, adequately or on time;
following the conclusion of the agreement, Active Ants becomes aware of circ*mstances that give good cause for concern that the other party will fail to fulfil its obligations;
on conclusion of the agreement the other party was asked to furnish security for the due performance of its obligations under the contract, and such security has not been forthcoming or is inadequate;
if, due to delay on the other party’s side, Active Ants can no longer be required to fulfil the agreement under the terms and conditions originally agreed.

11.2Active Ants is also entitled to terminate the agreement if circ*mstances occur which are such that fulfilment of the agreement is rendered unfeasible, or if any other circ*mstances occur which are such that unaltered maintenance of the agreement cannot reasonably be required of Active Ants.

11.3Upon termination of the agreement, any claims of Active Ants against the other party shall become immediately due and payable. If Active Ants suspends fulfilment of the obligations, this shall not affect its statutory rights or any entitlements under the agreement.

11.4If Active Ants suspends or terminates the agreement, it shall not be under any obligation to compensate any losses or costs ensuing from this in any way.

11.5If the termination is attributable to the other party, Active Ants shall be entitled to compensation for the losses, including direct and indirect costs.

11.6If the other party fails to meet its obligations arising from the agreement and such failure justifies termination of the agreement, Active Ants shall be entitled to terminate the agreement at once and with immediate effect, without any obligation on the part of Active Ants to pay any compensation or damages, whereas the other party shall be obliged to pay compensation or damages due to breach of contract.

11.7In the event of liquidation, an application for a suspension of payment or the filing of a winding-up petition, if an attachment is made – if and insofar as the attachment is not lifted within three months – against the other party, or in the case of debt restructuring or another circ*mstance as a result of which the other party can no longer freely dispose of its assets, Active Ants shall be entitled to terminate or cancel the agreement at once and with immediate effect, without any obligation to pay any compensation or damages. Any claims of Active Ants against the other party shall in that case become immediately due and payable.

11.8If the other party cancels all or part of an order placed, it shall be charged in full for the goods ordered or prepared plus any associated supply, removal and transportation costs and for the working hours reserved for the execution of the agreement.

Article 12: Force majeure

12.1Failure by Active Ants (and/or by third parties/suppliers engaged for the execution of the agreement) to perform the agreement cannot be ascribed to Active Ants if such failure is due to a cause for which Active Ants is not to blame or is not accountable by law, by this agreement, or according to generally accepted standards.

12.2Force majeure is defined as all external causes, foreseeable or non-foreseeable, that Active Ants is unable to influence and that prevent Active Ants from fulfilling its obligations. Force majeure includes, but is not limited to: fire, labour shortages, workers’ strikes within Active Ants or third parties, the hacking of a server, external attacks on the IT network or the hosting environment, inaccessibility of a server, unavailability and/or disruption in the supply and/or barriers to the transport of goods and other obstacles (occurring both inside and outside the company), war, mobilisation, epidemics, natural disasters, import or export bans, energy shortage and uprising.

12.3In the event of force majeure Active Ants is entitled to terminate or suspend the agreement in full or in part without judicial intervention, and without any obligation to pay compensation.

12.4If at the time the situation of force majeure commences Active Ants has fulfilled or will be able to fulfil part of its obligations under the agreement, and the part fulfilled or to be fulfilled is of independent value, Active Ants shall be entitled to invoice the part fulfilled or to be fulfilled separately.

Article 13: Liability of Active Ants, indemnification

13.1The total liability of Active Ants for culpable non-compliance with provisions of the agreement shall be limited to compensation for direct damage or loss up to a maximum of the amount of the price stipulated for the agreement (excluding VAT, and exclusive of any amounts owed for services performed by third parties and charged on to the other party, such as shipping costs). If the agreement is primarily a continuing performance contract with a term of more than one year, the price stipulated for the agreement will be set at50% of the fees paid or accrued by the other party to Active Ants (excluding VAT, and exclusive of any amounts owed for services performed by third parties and charged on to the other party, such as shipping costs) with respect to the Agreement giving rise to such liability during the twelve (12) months prior to the event giving rise to such liability.

13.2Active Ants shall not be liable for indirect loss, including consequential loss, lost profits, lost savings, loss of goodwill, loss due to business interruption, loss due to claims by the other party’s customers, corruption or loss of data, loss in connection with the use of third-party goods, materials or software prescribed by the other party to Active Ants, loss in connection with the use of suppliers prescribed by the other party to Active Ants and all other forms of loss not referred to in paragraph 1 of whatever nature.

13.3The exclusions referred to in the foregoing paragraphs of this article shall not apply if and insofar as the loss is the result of gross negligence or a deliberate act or omission on the part of Active Ants or its managerial staff.

13.4With regard to the performance of Active Ants’ activities arising from the agreement to which these terms and conditions apply, the other party is responsible for proper compliance with all applicable national and international laws and regulations (for example in relation to the payment of VAT). Active Ants accepts no liability whatsoever for any direct or indirect loss arising from the other party’s failure to comply with such laws and regulations.

13.5In all cases, Active Ants can be held liable for an attributable breach of an agreement only if the other party promptly gives Active Ants proper notice of default in writing, stating a reasonable time period in which to remedy the breach, and Active Ants continues to attributably breach its obligations even after that period. The notice of default must contain a description of the breach that is as complete and detailed as possible, so that Active Ants can respond adequately.

13.6Any right to claim compensation will at all times be subject to the condition that the other party notifies Active Ants of the loss in writing as soon as possible after it arises. Any claim for damages against Active Ants shall be barred by the mere expiry of a period of 12 months from the date on which the claim arose.

13.7The other party indemnifies Active Ants against third-party claims for loss in connection with or arising from the assignment carried out by Active Ants and is obliged to compensate Active Ants for the reasonable costs of defending itself against such claims.

13.8The provisions in this article shall also apply for the benefit of all legal and natural persons utilised by Active Ants in the performance of the agreement.

Article 14: Licence

By posting/publishing information and other materials (including the other party’s name and logo) on the website (or otherwise supplying information and other materials to Active Ants), the other party automatically grants an irrevocable licence to Active Ants. This licence applies among other things (but is not limited) to the posting of the other party’s name and logo on the Active Ants website.

Article 15: Performance of the agreement

15.1The other party shall bear the risk of misunderstandings with regard to the content and performance of the agreement where such misunderstandings are due to the fact that Active Ants has received incorrect, late, incomplete or no specifications or other communications made verbally or by a person designated by the other party or transmitted by any technical means such as telephone, computer and similar transmission media.

15.2Active Ants shall make every effort to carry out the service with due care, where appropriate in accordance with the agreements and procedures laid down in writing with the other party. All services of Active Ants shall be performed on the basis of a best efforts obligation, unless and insofar as Active Ants has explicitly committed itself to a result in the written agreement and the result in question has also been described in a sufficiently precise manner. Any agreements regarding a service level shall always be explicitly agreed in writing.

15.3If it has been agreed that the service will be provided in stages, Active Ants shall be entitled to postpone the start of the services that are part of a stage until the other party has approved the results of the previous stage in writing.

15.4In performing the services, Active Ants shall only be obliged to follow timely and sensible instructions of the other party if this has been explicitly agreed in writing. Active Ants shall not be obliged to follow instructions that change or supplement the content or scope of the agreed service; if such instructions are followed, however, the work in question shall be compensated in accordance with article 16.

15.5If a service agreement has been entered into with a view to performance by a specific person, Active Ants shall at all times be entitled to replace this person, after consulting the other party, with one or more other persons with the same qualifications.

Article 16: Changes and additional work

16.1If, at the request or with the prior consent of the other party, Active Ants has delivered work or other performances that fall outside the content or scope of the agreed services, such work or performances shall be charged to the other party at Active Ants’ usual rates. Expanding or modifying a system analysis, a design or specifications shall also constitute additional work. Active Ants shall under no circ*mstances be obliged to comply with such a request, and may demand that a separate agreement be formed to that end.

16.2The other party accepts that work or performances as referred to in the previous paragraph of this article may affect the agreed or anticipated time of completion of the services and the mutual responsibilities of the other party and Active Ants. The fact that additional work (or the demand for it) arises during performance of the agreement shall under no circ*mstances constitute grounds for the other party to dissolve or terminate the agreement.

16.3Insofar as a set price has been agreed for the services, Active Ants shall, upon request, inform the other party in advance and in writing of the financial consequences of such additional work or performances.

Article 17: No-takeover of personnel

During the agreement and for a period of six months following termination of the agreement, the other party is not permitted to engage, directly or indirectly, employ or negotiate in that context with employees of Active Ants who are or were involved in the performance of the work, other than in consultation with the other party.

Article 18: Applicable law and settlement of disputes

18.1The agreement between Active Ants and the other party to which these terms and conditions apply shall be governed exclusively by Dutch law, even if all or part of an obligation is carried out abroad or if the party involved in the legal relationship has its residence outside the Netherlands, unless mandatory rules of law provide otherwise.

18.2The applicability of the 1980 Vienna Sales Convention is excluded.

Article 19: Location and amendments to the general terms and conditions

19.1These general terms and conditions can be viewed on and downloaded from the Active Ants website.

19.2The version that applied at the time the legal relationship was entered into with the other party shall apply,butActive Ants reserves the right to unilaterally change these general terms and conditions at any time. In that event, Active Ants will notify the other party of this no later than thirty (30) days prior to the changes taking effect. If the other party disagrees with these changes, it may terminate the Agreement without any further compensation, by registered mail addressed to Active Ants no later than twenty (20) days after ActiveAnts’snotification of the change. Such early termination by the other party will take effect on the last business day of the month in which the other party has announced the early termination based on this provision.

19.3The Dutch text of these general terms and conditions shall always be decisive in the interpretation thereof.