General conditions

Tomahawk Digital Marketing is a trade name of Tomahawk B.V.

These general terms and conditions shall apply to all offers and agreements resulting therefrom between Tomahawk B.V. of Nijmegen, Netherlands, Chamber of Commerce 59760850 and its counterparties ("Client").

Provisions or conditions made by the Client which deviate from, or do not appear in, these terms and conditions shall only be binding on Tomahawk B.V. if and to the extent expressly accepted in writing.

1. Quotation and acceptance

Tomahawk B.V. will prepare a quotation in which Tomahawk B.V. will indicate what work ("the Services") Tomahawk B.V. offers to perform, what is included in the Services and what amount will be due for them. Only the description of the Services indicated in the quotation is binding.
In general, the Services include remote support and everything related to it. Other work will be performed only if specified in the quotation.
A quotation is entirely without engagement and valid until withdrawn by Tomahawk B.V., unless otherwise stated in the quotation. Tomahawk B.V. can never be obliged to accept an acceptance after this period, but if Tomahawk B.V. does so, the quotation is still accepted.
The agreement comes into effect when the communication containing the acceptance of the quotation by the Client is received by Tomahawk B.V. The quotation must be signed by the Client and returned in writing or by e-mail.
If Client does not explicitly indicate its agreement with the quotation, but nevertheless agrees, or creates that impression, that Tomahawk B.V. will perform work that falls within the description of the Services, the quotation will be considered accepted. This also applies when the Client requests Tomahawk B.V. to perform certain work without waiting for a formal quotation.
Changing the Services is only possible with the agreement of both parties, except as otherwise provided elsewhere in these terms and conditions. Tomahawk B.V. will perform requested additional work at its usual hourly rate. Any additional work will be indicated in advance.

2. Delivery of the Services.

After the agreement is established, the Services will be performed by Tomahawk B.V. as soon as possible in accordance with the quotation, taking into account reasonable wishes of the Client.
The Client is obliged to do and to refrain from doing everything that is reasonably desirable and necessary to enable the correct and timely performance of the Services. In particular, the Client shall ensure that all data, which Tomahawk B.V. indicates to be necessary or which the Client should reasonably understand to be necessary for the performance of the Services, shall be provided to Tomahawk B.V. in a timely manner.
Client will provide Tomahawk B.V. with access to all places, services and accounts under its control (such as web hosting accounts) that Tomahawk B.V. reasonably needs to provide the Services.
Tomahawk B.V. warrants that the Services will be performed carefully, thoroughly and to the best of its ability.
Tomahawk B.V. shall be entitled, but never obliged, to examine the accuracy, completeness or consistency of the source materials, requirements or specifications made available to it and, upon discovery of any imperfections, to suspend the agreed work until such time as the Client has remedied the imperfections in question.
Unless otherwise agreed, Tomahawk B.V. is not a party to the provision of third party services, such as software licenses or hosting required by Services, even if Tomahawk B.V. purchases such services on behalf of the Client.
Tomahawk B.V. has the right to (temporarily) not provide or limit the Services if the Client fails to fulfill any obligation to Tomahawk B.V. with respect to the agreement or acts in violation of these terms and conditions.
Tomahawk B.V. will endeavor to respond to a request from the Client as soon as possible, but cannot make any concrete commitments regarding times, unless otherwise agreed upon in the quotation.

3. Provisions on remote support

Remote support is provided by telephone, e-mail and other mutually agreed upon channels.
Tomahawk B.V. will, at the request of Client, propose software that will allow remote access to computers to be supported. It is the responsibility of the Client to ensure that its network and security environment allows this software to operate.
If it appears that remote support does not lead to a satisfactory solution or is not feasible given the nature of the problem, Tomahawk B.V. will make every effort to come to a solution at the Client's location at the normal hourly rate

4. Development of works

If a Service extends to the development, configuration and/or adaptation of Works, Tomahawk B.V. shall, unless otherwise agreed, be entitled to use images, software and components of third parties in the development, configuration or adaptation of Works. Tomahawk B.V. will adequately inform Client of all applicable license terms.
After delivery, the responsibility for proper compliance with the relevant third-party licenses when using the developed Works lies with Client.

5. Intellectual property rights

All rights of intellectual property in all Services or Works developed or delivered under the agreement are vested exclusively in Tomahawk B.V. or its licensors. Only if explicitly stated in the quotation or separately explicitly agreed, rights may be transferred to the Client.
Client shall acquire only the rights of use and powers arising from the scope of the Agreement or granted in writing, and otherwise Client shall not reproduce or disclose the Works or other results of Services materials.
Client is entitled to make changes to Works that it receives a right of use.
Client is not entitled to a copy of source files (such as image, website or software source code) of delivered Works unless explicitly and unambiguously agreed upon in writing.
The Client is not permitted to remove or alter any indication of copyright, trademarks, trade names or other intellectual property rights from the materials from Works licensed to it, including indications of the confidential nature and secrecy of the materials.

6. Pricing and Payment

The Contractor purchases the Services on a subscription basis, i.e. a fixed amount to be paid per month in advance.
Tomahawk B.V. will send an electronic invoice to Client for the amounts owed by Client.
The payment term of invoices is one month after the date of the invoice, unless a longer payment term is indicated on the invoice. If the Client fails to pay on time, he shall be in default by operation of law after the expiry of this period without notice of default being required. If an amount due is not paid within the payment period, statutory interest shall be payable on the outstanding invoice amount.
If Customer believes that (part of) an invoice is incorrect, it must report this to Tomahawk B.V. within the payment period. The payment obligation of the disputed (but not the remainder) will be suspended until Tomahawk B.V. has investigated the report. If, after investigation by Tomahawk B.V., it appears that the dispute was unjustified, the Client must still pay the disputed amount within seven days.
In the event of late payment, Client shall, in addition to the amount due and the interest accrued thereon, be liable for full compensation of both extrajudicial and judicial collection costs, including the costs of lawyers, bailiffs and collection agencies. In particular, Tomahawk B.V. is in this case entitled to charge administration costs of €50.
The claim for payment is immediately due and payable in the event that Client is declared bankrupt, applies for a suspension of payments or a general attachment is levied on Client's assets, Client dies, goes into liquidation or is dissolved.

7. Secrecy

The parties shall keep confidential any information they provide to each other before, during or after the execution of the agreement if this information is marked as confidential or if the receiving party knows or should know that the information was intended to be confidential. The parties shall also impose this obligation on their employees as well as third parties engaged by them for the execution of the agreement.
Tomahawk B.V. will make every effort to avoid taking cognizance of data stored and/or disseminated by the Client through the hardware or software to which the Services relate, unless this is necessary for the proper performance of the agreement or Tomahawk B.V. is required to do so under a statutory provision or court order. In that case Tomahawk B.V. will make every effort to limit the knowledge of the data as much as possible, to the extent within its power.
Tomahawk B.V. may use the knowledge gained in the performance of the agreement for other assignments, to the extent that in doing so no information of the Client becomes available to third parties in violation of confidentiality obligations.
The obligations under this Article shall survive termination of the Agreement for any reason for as long as the party providing the information can reasonably claim confidentiality.

8. Liability

Tomahawk B.V. shall only be liable to Client in the event of an attributable failure in the performance of the agreement and only for substitute damages, i.e. compensation of the value of the omitted performance.
Any liability of Tomahawk B.V. for any other form of damage is excluded, including, but not limited to, additional compensation in any form whatsoever, compensation for indirect damage or consequential damage, damage due to loss of turnover or profit, damage due to loss of data as well as damage due to exceeding deadlines as a result of changed circumstances.
In the event of liability under subsection 1, the maximum amount Tomahawk B.V. is obliged to compensate will be equal to what was paid for the twelve months preceding the month in which the harmful event occurred. This maximum amount will lapse if and to the extent the damage is the result of intent or gross negligence of Tomahawk B.V.
Tomahawk B.V.'s liability for attributable failure to perform the agreement will arise only if the Client gives Tomahawk B.V. immediate and proper notice of default in writing, whereby a reasonable period is set to remedy the failure, and Tomahawk B.V. continues to fail attributably in the performance of its obligations even after that period. The notice of default must contain as detailed as possible a description of the failure, so that Tomahawk B.V. is able to respond adequately.
In case of force majeure, which in any case includes malfunctioning or failure of the internet, telecommunication infrastructure, power failures, domestic riots, mobilization, war, traffic congestion, strike, lockout, business disturbances, supply congestion, fire, flood, import and export restrictions and in case Tomahawk B.V. is not able to deliver by its own suppliers, regardless of the reason, as a result of which Tomahawk B.V. cannot reasonably be expected to comply with the agreement. is unable to deliver by its own suppliers, for whatever reason, as a result of which performance of the agreement cannot reasonably be required of Tomahawk B.V., performance of the agreement shall be suspended, or the agreement shall be terminated when the force majeure situation has lasted longer than ninety days, all without any obligation to pay damages.

9. Duration and termination

The agreement is entered into indefinitely.
Both parties may always terminate in writing, subject to three months' notice. Furthermore, the agreement may only be terminated prematurely as stipulated in these general terms and conditions, or with the consent of both parties.
After cancellation, termination or dissolution for any reason whatsoever, Tomahawk B.V. will be entitled to delete all data stored on its own premises on behalf of the Client immediately after the date on which the agreement expires. Tomahawk B.V. is not obliged to provide the Client with a copy of this data.
The agreement shall terminate automatically if a party is declared bankrupt, applies for a suspension of payments or general attachment of assets, dies, goes into liquidation or is dissolved.

10. Changes in agreement

After acceptance, the agreement may only be modified by mutual consent.
However, if the agreement is a continuing performance agreement, Tomahawk B.V. shall be entitled to unilaterally amend or extend these terms and conditions once per calendar year. To this end, it must notify the Client at least two months before the adjustments or extensions will take effect. However, amendments to the general conditions can never set aside a specific agreement.
If Client objects within this period, Tomahawk B.V. will consider whether or not it wishes to withdraw the objectionable modifications or extensions. Tomahawk B.V. will notify Client of this decision. If Tomahawk B.V. does not wish to withdraw objectionable modifications or extensions, Client will be entitled to terminate the agreement as of the date they will take effect.
Tomahawk B.V. may at any time make amendments to these terms and conditions if they are necessary due to amended statutory regulations. The Client cannot object to such amendments.
The above regulation also applies to prizes.

11. Final Provisions

Dutch law is applicable to this agreement. To the extent not otherwise prescribed by the rules of mandatory law, all disputes arising from this agreement shall be submitted to the competent Dutch court for the district in which Tomahawk B.V. is located.
If any provision of this agreement proves to be void, this shall not affect the validity of the entire agreement. The parties will in that case determine (a) new provision(s) to replace it, which as much as is legally possible gives shape to the intention of the original agreement and these general conditions.
In these terms and conditions, "in writing" includes e-mail and communication by fax, provided that the identity of the sender and the integrity of the content are sufficiently established. The parties will endeavor to confirm receipt and content of communications by e-mail.
The version of any communication received or stored by Tomahawk B.V. shall be deemed authentic, subject to evidence to the contrary to be provided by Client.
Each party shall only be entitled to transfer its rights and obligations under the agreement to a third party with the prior written consent of the other party. Notwithstanding this, Tomahawk B.V. is always entitled to transfer its rights and obligations under the agreement to a parent, subsidiary or sister company.

Questions?

I'm Roel, founder of Tomahawk. Do you have questions about our terms and conditions? I'm happy to help you further.