Unicorn Powered

I. Terms and Conditions

Definitions

The following terms are capitalised in these General Terms and Conditions (these "Conditions"), both in the singular and in the plural. These terms have the following meanings:

Unicorn Powered:
Contracting Party: Unicorn Powered, LLC, an Oregon limited liability company incorporated under the laws of the United States of America and the State of Oregon.
Agreement:
The agreement between Unicorn Powered and the Client concerning the specific provisions of the Service.
Annex:
Appendixes to these Conditions with more specific provisions relating to the Service to be provided.
Client:
The natural person or legal entity that has concluded, or is going to conclude, an Agreement with Unicorn Powered.
Conditions:
These general terms and conditions of Unicorn Powered including all applicable Annexes.
IP-Rights:
All intellectual property rights and associated rights such as copyrights, trade mark rights, patent rights, design rights, trade name rights, database rights and related rights, as well as rights to know-how and performances on a par with these rights.
Parties:
Unicorn Powered and the Client.
Personal Data:
any information relating to an identified or identifiable natural person ("data subject").
Service:
The Services to be provided to the Client by Unicorn Powered pursuant to the Agreement, including, if applicable, results of these Services.

General

These Conditions apply to and form an integral part of all offers and quotations of Unicorn Powered, Agreements and any other legal acts related thereto between Unicorn Powered and the Client and/or its legal successor. The specific Annexes also apply as agreed between Unicorn Powered and Client. If this general part of these Conditions is contrary to or incompatible with any other specific provision as included in the Annex(es) agreed between Unicorn Powered and the Client, the specific provisions in the Annex(es) concerned prevail.
If these Conditions state that an act must be carried out in writing, this is deemed to refer to email as well. Electronic communication between the Parties is deemed to have been received on the day it was sent, unless proof to the contrary is furnished.
Any variations on these Conditions are only valid if they have been agreed explicitly in writing by Unicorn Powered and the Client, and they only apply to the specific Agreement for which they were agreed.
The Client's generally applied purchase- and/or other conditions do not apply to any legal relationship between the Parties.
Once these Conditions have been applied to a legal relationship between Unicorn Powered and the Client, the Client is deemed to have agreed in advance to the applicability of these Conditions to any Agreements concluded or to be concluded thereafter.
If and insofar as any provision in these Conditions is declared to be nonbinding, the other provisions of these Conditions remain in full force. In that case the Parties shall replace the non-binding provision with a provision which differs as little as possible from the non-binding provision in terms of both content and scope.
In the event of a conflict between provisions in an Agreement and these Conditions, the provisions in the Agreement prevail. In the event of a conflict between these Conditions and a specific Annex, the provisions in the specific Annex(es) prevail.
Unicorn Powered is authorised to unilaterally amend these Conditions. The Client shall be informed to that effect in writing and Unicorn Powered shall make the new version of the Conditions available to the Client.

Quotations and Formation of the Agreement

Quotations and other offers by Unicorn Powered are given without obligation and must be regarded as an invitation to enter into an Agreement, unless Unicorn Powered has explicitly indicated otherwise in writing.
Offers and quotations lose their validity thirty (30) calendar days after their date, unless otherwise indicated in writing.
The Client guarantees that the details disclosed by, or on behalf of it, to Unicorn Powered, on which Unicorn Powered has based its offer, are correct and complete. If those details should prove not to be correct or complete, Unicorn Powered is entitled to modify its offer.
An Agreement is concluded by written confirmation from the Client of an unmodified valid quotation and/or offer made by Unicorn Powered.
Orders placed by the Client are irrevocable.
Unicorn Powered is authorized at all times to terminate the negotiations with the Client at any time without stating reasons and without being liable for any loss and/or damages caused as a result, and without being obligated to continue the negotiations.

Performance of the Agreement and Delivery

Unicorn Powered shall perform the Agreement to the best of its knowledge and ability and in accordance with the standards of the profession, such on the basis of the latest scientific and technical knowledge (state of the art). The obligations of Unicorn Powered on the basis of the Agreement should be interpreted as a duty to perform. Any arrangements about the level of the Service to be provided shall always be agreed in writing in a Service Level Agreement.
Parties shall determine the delivery term and delivery dates as well as the place and manner in which the Services shall be delivered and/or provided in the Agreement. The duration of an assignment depends on various factors and circumstances, such as the quality of the data and information disclosed by the Client and the cooperation of the Client and relevant third parties. The delivery terms are therefore not to be interpreted as strict deadlines. In the event that a delivery term or other term is exceeded, or is likely to be exceeded, Parties shall consult with each other as soon as possible in order to take suitable measures. Any delay, for whatever reason, with respect to agreed delivery times does not give any entitlement of the Client to receive loss and/or damages or any other form of compensation from Unicorn Powered, unless explicitly agreed otherwise in writing between Unicorn Powered and the Client.
If it has been agreed that the Agreement shall be performed in phases, Unicorn Powered is authorised to postpone the commencement of the Services that form part of a subsequent phase until the Client has approved the results of the prior phase in writing.
Unicorn Powered is not obligated to follow any instructions by the Client and/or any third party that alter or add to the content or scope of the agreed Services. However, if such instructions are followed, the activities concerned shall be paid in accordance with Unicorn Powered's usual rates and Unicorn Powered shall notify the Client of this situation.
Unicorn Powered is entitled to have the Agreement carried out by third parties wholly or in part, or to engage third parties for the performance of the Agreement.
Services are deemed to have been accepted if the Client has not substantiated in writing and in detail, within five (5) working days after delivery of the Services concerned, the reason(s) why the Services have not been accepted. If the Services are not accepted and the Client can sufficiently demonstrate that the Services provided do not fulfil the Agreement, Unicorn Powered shall replace or adapt the Services within a reasonable deadline. If the Client again does not accept the Services, the Parties shall perform the acceptance procedure again. In that event, the Client shall substantiate the reason(s) why the Services provided are necessary to fulfil the Agreement, in order for the costs of such repair work by Unicorn Powered to be borne by Unicorn Powered. In the absence of such substantiation, the costs of such repair work shall be borne by the Client.

Prices and Terms of Payment

All prices are exclusive of sales tax and other government levies. The prices are based on performance during normal working hours.
Works not included in the quotation by Unicorn Powered are not covered by the Agreement and may lead to an overall price increase.
Unless explicitly agreed otherwise in writing, price indications, estimates, budgets and/or cost estimates issued by Unicorn Powered are merely for information purposes, and no rights or expectations may be derived from them. Only if the Parties have agreed so, Unicorn Powered is obligated to inform the Client when a cost estimate or estimate will be exceeded.
All prices indicated in writing or electronically by Unicorn Powered are subject to programming and typing errors or spelling mistakes. Unicorn Powered is not bound by such errors and/or spelling mistakes.
Parties agree upon the date or dates on which Unicorn Powered charges the fee for Services to the Client in the Agreement. The Client pays the invoices in accordance with the terms of payment stated on the invoice. In the absence of a specific payment term in the Agreement, the Client pays within fourteen (14) calendar days after the invoice date. All payments will be made without any deduction, suspension or set off.
Payments made by the Client shall first be used to pay all due interest and costs, and then the payable invoices which have been outstanding the longest, even when the Client states that the payment relates to a later invoice.
If the Client does not pay the amounts due on time, the Client is in default and automatically owes the statutory commercial interest on - and on top of - the outstanding amount, without any demand or notice of default being required. If after a reminder by Unicorn Powered the Client still fails to fulfil its payment obligations, Unicorn Powered may refer the debt for collection to a third party in which case the Client is obligated to pay, all judicial and extrajudicial costs, including costs of external experts in addition to the total outstanding amount.
Unicorn Powered is entitled to retain Services that are still in its possession if the Client does not comply with its payment obligations, regardless of whether the arrears are related to the Services that are being retained by Unicorn Powered.
During the term of an Agreement, Unicorn Powered is authorised to increase and/or index the prices for its Services, in conformity with the price index figure for that preceding calendar year as published by the The Bureau of Labor Statistics (BLS), an agency of the United States Department of Labor (consumer price index for ‘all households’), plus a maximum of twenty-five percent (25%). Unicorn Powered is entitled to implement the cost increase at a later date if it finds this desirable from an administrative point of view or agreed upon by the Client.
Any comments or complaints regarding invoices, bills and fee statements must be made in writing by the Client to Unicorn Powered within fourteen (14) calendar days after receipt of such invoice, bill or fee statement, in the absence of which the invoice, bill or fee statement is deemed to have been accepted by the Client. Any filed comments or complaints do not suspend the payment obligations of the Client.
Unicorn Powered is entitled to send the Client interim invoices and/or to invoice on the basis of advance payments, to offset or to require any form of security by the Client.
The Client agrees to electronic invoicing by Unicorn Powered.
In the event that the financial position of the Client changes during the performance of the Agreement, Unicorn Powered is entitled to quit any further execution of the Agreement wholly or partially or to change the terms of payment.

Changes to the Assignment and/or Extra Work

The Client accepts that the time schedule of the Agreement may be affected when the scope of the Agreement is expanded and/or altered while the Agreement is being performed by Unicorn Powered. If such alteration affects the agreed upon remuneration, Unicorn Powered reports this as quickly as possible to the Client.
When any supplemental requests or wishes of the Client result in an alteration of the Agreement following which Unicorn Powered must carry out additional works, such additional works will be charged to the Client based on actual costs at the usual rates that apply at that time, unless explicitly agreed otherwise in writing.

Obligations of the Client

The Client ensures that all data and/or information that Unicorn Powered has indicated to be necessary, or which the Client reasonably ought to understand to be necessary for the performance of the Agreement by Unicorn Powered, including information about legislation or regulations to be complied with by Unicorn Powered that applies specifically to the Client's field of work, are timely disclosed to Unicorn Powered by the Client and the Client fully cooperates with Unicorn Powered insofar as the latter requires. Quotations and offers issued by Unicorn Powered as well as the Agreement concluded afterwards are based on the information disclosed by the Client. Unicorn Powered shall not be liable for any loss and/or damages which arise due to it when work is based on inaccurate and/or incomplete details and information provided by the Client.
If data needed for the performance of the Agreement is not timely disclosed to Unicorn Powered, Unicorn Powered shall be entitled to suspend its performance of the Agreement and/or to charge to the Client any additional costs arising from the delay at the usual rates that apply at that time.
If, within the framework of the Agreement, Unicorn Powered discloses any user names and/or passwords to the Client, the Client is responsible for the correct use of these user names and/or passwords and is entirely liable for any misuse made of the user names or passwords, unless such misuse is the result of intent or gross negligence on the part of Unicorn Powered.
If Unicorn Powered discloses user names and/or passwords within the framework of the Agreement, the Client is prohibited from disclosing, publishing and/or sharing these user names and/or passwords to third parties without Unicorn Powered's explicit written consent.

Termination, Premature Termination and the Related Consequences

An Agreement is in effect as of the date stated in Section 3 for the term agreed upon in writing between the Parties and ends by operation of law on the date as agreed upon by the Parties or when the Services provided by Unicorn Powered have been completed.
Unless explicitly agreed otherwise in writing, the Parties can terminate the Agreement prematurely in writing subject to a notice period of one (1) months. If the Client terminates the Agreement prematurely, Unicorn Powered is entitled to charge cancellation costs (including, but not limited to, costs already incurred in connection with the scheduling of personnel by Unicorn Powered who can no longer be deployed elsewhere because of the change and/or cancellation of the Assignment).
Unicorn Powered is entitled to terminate the Agreement wholly or in part with immediate effect, without judicial intervention and without being obligated to pay any loss and/or damages or any other form of compensation to the client, in the event (i) the Client is declared bankrupt or is granted a suspension of payments; as well as (ii) the Client's business is closed down or liquidated other than for the purposes of reconstruction or merger of companies, or (iii) if the decisive control of the Client's business changes (change of control).
The Agreement may only be terminated on the basis of an attributable breach of the Agreement after a written notice of default has been sent by the Client to Unicorn Powered that is as detailed as possible, with a reasonable term being set for fulfilment or remedy of the failure by Unicorn Powered, unless these Conditions or the law provide otherwise.
If the Agreement is terminated, anything Unicorn Powered has already delivered to and/or carried out for the Client under the Agreement as well as the related payment obligations of the Client shall not be(come) undone and/or undue, unless the Client proves that Unicorn Powered is in default with regard to the material part of those Services. Amounts which Unicorn Powered has invoiced before the dissolution of the Agreement, relating to Services already provided or performed under the Agreement, shall remain due and payable at the moment of dissolution.
In the event of dissolution of the Agreement, all rights granted to the Client automatically lapse, except for those IP-Rights that have been transferred to the Client or for which it has been agreed in writing at the time of dissolution of the Agreement that they will continue. In the event of dissolution of the Agreement, all rights granted to the Client are no longer be entitled to use the Service.
Sections that, by their nature, are intended to continue to apply after the end of the Agreement shall remain fully effective after the Agreement is terminated, including, but not limited to, the sections relating to confidentiality, applicable law and competent courts.

IP-Rights

Unless explicitly determined otherwise in the Agreement, all IP-rights to all the Services provided within the framework of the Agreement, as well as all other materials or information which Unicorn Powered has made available shall be vested exclusively in Unicorn Powered and/or its licensors.
Any IP Rights arising in whole or in part on the part of the Client in the context of the Services provided under the Agreement shall be transferred by Unicorn Powered to the Client, under the condition precedent as set out in the Agreement, including - but not limited to - full payment by the Client of the agreed fees to Unicorn Powered for the Services to be provided. To the extent that any further legal acts are required for this transfer, both parties shall cooperate with it. Nothing in these Conditions implies a transfer of IP Rights by Unicorn Powered to Client.
Unicorn Powered is permitted to use the Services and the materials used for the implementation of the Agreement, such as designs, drawings, films, software, files whether electronic or otherwise, reports, formats and interviews, for purposes of its own promotion and/or publicity, unless otherwise stipulated in the Agreement.
Unicorn Powered reserves the right to introduce technical protective measures into the Services. The Client is not permitted to circumvent these technical protective measures or to offer means to do so.

Privacy

If within the framework of performing the Services, Unicorn Powered has to process Personal Data of customers of the Client.
The Client guarantees to Unicorn Powered that Personal Data is not unlawful and that they do not infringe the rights of third parties. The Client indemnifies Unicorn Powered against all (legal) claims and demands and the resulting loss and/or damages of third parties, including - but not limited to - supervisory authorities and data subjects, on any basis whatsoever, in connection with the processing of this data within the framework of the Agreement.
Pursuant to the legislation on the processing of Personal Data (such as the GDPR), the Client has obligations to third parties, such as the requirement to have a legitimate basis for the processing, the obligation to disclose information, and to allow data subjects to inspect, correct and remove their Personal Data. The responsibility to comply with these obligations lies fully and solely with the Client. To the extent technically possible, Unicorn Powered shall cooperate with the obligations to be complied with by the Client, including transmission requests from third parties within the framework of the Client's obligations. The costs involved with such cooperation of Unicorn Powered are fully borne by the Client.
The Client grants Unicorn Powered a general authorisation to appoint subprocessors. Unicorn Powered notifies the Client in advance of the appointment of sub-processors, in which case the Client has the right to object, giving reasons, within four (4) weeks. After expiry of the four (4) week-term and without having raised an objection, the Client is deemed to have consented to the engagement of those subprocessors.
Unicorn Powered shall ensure that the subprocessors are bound in writing to the same obligations as Unicorn Powered under this Section 10 and supervises compliance therewith. Unicorn Powered shall be liable to the Client for any compliance - or a failure thereof - with the obligations under this Section 10 by a subprocessor.
Unicorn Powered shall only transfer the Personal Data to a country outside the European Union if it complies with all applicable legal requirements.
Unicorn Powered shall ensure that all Personal Data are treated in strict confidence. Unicorn Powered shall also ensure that all its employees authorised to process the Personal Data are bound by a duty of confidentiality.
Unicorn Powered shall take all appropriate technical and organisational measures, or have them taken by third parties, and maintains and, to the extent necessary, adjusts them in order to protect the Personal Data that Unicorn Powered processes on the instructions of the Client in order to prevent unlawful processing as referred to in the GDPR. Unicorn Powered shall not process any Personal Data obtained from the Client for its own purposes.
Unicorn Powered shall discuss the appropriate technical and organisational measures to be taken for the protection of Personal Data from loss or from any other form of unlawful processing with the Client.
The Client acknowledges that it has full knowledge of the technical and organisational measures to be carried out by Unicorn Powered and hereby declares that these measures guarantee a suitable level of protection, taking into consideration the state of the art and the costs of implementation and having regard for the risks involved in the processing and the nature of the data to be protected.
If a security incident occurs involving (i) destruction; (ii) loss; (iii) falsification; (iv) unauthorised distribution of and/or access to; or (v) any other form of unlawful processing of Personal Data, despite the fact that Unicorn Powered has implemented the agreed appropriate measures, the Client cannot hold Unicorn Powered liable for any loss or damages resulting from such incident.
If the Client explicitly requests measures which, in the opinion of Unicorn Powered, cannot be regarded as suitable technical and organisational measures, the implementation thereof shall be entirely for the account and risk of the Client, and Unicorn Powered does not accept any liability for any loss and/or damages suffered by the Client or third parties.
Unless storage is mandatory under applicable law, and at the option of Unicorn Powered, Unicorn Powered either destroys or returns the Personal Data to the Client at the time of termination of the Agreement.

Confidentiality

The Parties shall treat all information they obtain from one another, in any form whatsoever - written, verbal, electronic or physical - including, but not limited to software, (source) codes, programs, applications, customer details, know-how, technical specifications, documentation ("Confidential Information") as strictly confidential, and shall keep it secret during the term of the Agreement and for five (2) years after the end of the Agreement, unless it follows from the nature of the information that the limitation in time as mentioned in the previous sentence does not apply.
The Parties shall only use the Confidential Information for the purposes for which it was disclosed and in doing so shall observe at least the same duty of care and safeguards that apply to their own internal confidential information. The Parties shall only disclose the Confidential Information to employees, and employees of affiliated businesses and subcontractors, insofar as is necessary within the framework of the (implementation of the) Agreement. Comparable provisions in relation to confidentiality must be imposed on these employees and subcontractors
The obligations to maintain secrecy with regard to the Confidential Information do not apply insofar as the receiving Party can demonstrate that the information concerned:
- was already known to it when it was received;
- was already publicly known when it was received;
- became publicly known after receipt and this is not attributable to the receiving Party;
- was received in a lawful manner from third parties along with the right to communicate it publicly without any obligation to maintain secrecy;
- must be disclosed pursuant to legislation or regulations or pursuant to a court order, and the disclosing Party has informed the other Party of such an obligation to communicate it to the public;
- was made public with the approval of the Party disclosing it.

Liability

Except in the event of intent or gross negligence by Unicorn Powered, any liability of Unicorn Powered on account of (i) an attributable failure to perform the Agreement; (ii) in tort; or (iii) for any other reason, expressly including any failure in the performance of a warranty obligation agreed with Client (hereinafter: a "Liability Event"), shall be limited to compensation of the direct damage suffered by Client up to a maximum of the amount invoiced by Unicorn Powered to Client 12 months up to the date of the Liability Event in the context of the Agreement (excluding third-party fees, including media and licence fees) and paid by Client in a timely manner. Except for cases as referred to in Section 12.2 of these Terms and Conditions, Unicorn Powered's total liability for damage, on any account whatsoever, shall never exceed $500,000 (five hundred thousand USD). A series of interrelated failures shall be regarded as one Liability Event.
The liability of Unicorn Powered for any loss and/or damages by death, physical injury or material damage to property shall, in total, never exceed $1,000,000 (one million US dollars).
Unicorn Powered shall not be liable for indirect loss or damages, consequential damage, lost profit, missed savings, reduced goodwill, damage due to operational delays, damage as a consequence of claims by purchasers of the Client, damage relating to the use of third-party goods, materials or software prescribed to Unicorn Powered by the Client and damage relating to the engagement of third parties prescribed by the Client to Unicorn Powered. Nor is Unicorn Powered liable due to deformation, destruction or loss of data or documents.
Unicorn Powered shall not be liable for any loss and/or damages which is covered by any insurance taken out by the Client.
The exclusions and restrictions of Unicorn Powered's liability, as described in the above paragraphs of this Section 12, do not in any way prejudice the exclusions or restrictions of Unicorn Powered on account of this general part of these Conditions and the Schedule.
Unless fulfilment by Unicorn Powered is permanently impossible, liability on the part of Unicorn Powered due to attributable failure in the fulfilment of an Agreement shall only arise after the Client has immediately placed Unicorn Powered in default in writing, whereby a reasonable deadline for rectification of such failure has been set and Unicorn Powered continues, even after such deadline, to fail culpably in the fulfilment of its obligations. The notice of default must include as complete and detailed a description of the failure as possible, so that Unicorn Powered has the opportunity to respond adequately.
Any right to compensation is always subject to the Client reporting the damage as quickly as possible, but in any event within thirty (30) calendar days after it has arisen. If Unicorn Powered is not informed by the aforementioned deadline, Unicorn Powered shall be released from any liability in connection with said damage. Any claim for compensation against Unicorn Powered shall cease to exist simply by the passage of six (6) months after the claim arose.
The Client shall bear the full risk and responsibility for its use of the Services. Unicorn Powered does not accept any liability for use of the Services by the Client. The Client indemnifies Unicorn Powered against all third-party claims in connection with the performance of the Agreement and/or resulting from the use of the Services by the Client.
The Client shall indemnify Unicorn Powered against all third-party claims due to product liability as a consequence of a defect in a product or system supplied by the Client to third parties and which consisted partly of equipment, software or other materials supplied by Unicorn Powered, unless and insofar as the Client proves that the damage was caused by said equipment, software or other materials.
The provisions in this Section 12, as well as all other liability restrictions and exclusions referred to in these Conditions, also apply for the benefit of all legal entities/persons which Unicorn Powered serves during the performance of the Agreement.

Force Majeure

In the event of force majeure, no attributable failure applies in the performance of the Agreement by the Parties.
Force majeure includes, among other things, disruptions in the supply of electricity, strikes or work interruptions, riots, government measures, fire, natural disasters, floods, failure on the part of Unicorn Powered's suppliers, failure on the part of third parties enlisted by the Parties, disruptions in the Internet connection, malfunctions in equipment and/or (telecommunication) networks and other unforeseen circumstances.
If the force majeure lasts at least thirty (30) days, the Parties are entitled to terminate the Agreement without being obligated to reimburse any loss or damages, undo any work that has been carried out by Unicorn Powered or to pay any damages or any other form of compensation for such dissolution.
If Unicorn Powered can still perform in part at the time of the force majeure, or if it has performed, it is authorised to perform this Service and to invoice it separately, as if it were a separate Agreement.

Transfer of Rights and Obligations

Unicorn Powered can license, sublicense or transfer the rights and obligations arising from the Agreement to third parties. The Client is not authorised in this respect.

Settlement and Mediation

If a dispute between the Parties cannot be settled amicably, the dispute shall, before it is submitted to the court, be submitted to competent representatives of the Parties in order to assess the settlement possibilities.

Applicable Law and Competent Court

These Conditions, the Annexes and the Agreement are exclusively subject to United States & Oregon State law.
Disputes that may arise between Unicorn Powered and the Client within the framework of, or in connection with, these Conditions, the Annexes and/or the Agreement shall exclusively be submitted to the competent court in Multnomah County, in the state of Oregon, United States of America.

II. Development of Websites and Apps

Applicability

In addition to the general provisions of the Conditions, the provisions set out in this Annex II apply if Unicorn Powered develops, on the Client's instructions, a website (hereinafter referred to as the "Website") or application (hereinafter referred to as "App") and/or executes a related Service (hereinafter referred to as the"Service"). The other capitalised terms used in this Annex are defined in the Conditions.

Development of Websites and/or Apps

Unicorn Powered shall make an effort to develop the Website and/or App or perform the Service pursuant to the specifications included in the Agreement.
Unicorn Powered may use existing or future generic software on which it has or shall have IP Rights ("Background IP") to develop the Website and/or App. Background IP is distinguished from the IP rights to the tailor-made software developed for the Client in the execution of the order ("Foreground IP"), without which the Website and/or App could not exist. Background IP can never be Foreground IP (too).
Unicorn Powered shall be entitled to demand a written agreement for a design and/or draft of the Website and/or App and/or Service before starting the development, and to suspend the development and to charge the Client any costs resulting from the delay in accordance with the Client’s usual rates until this agreement has been received.

Client's Rights

Unless otherwise provided in the Agreement, subject to payment of all invoices relating to Foreground IP, Unicorn Powered shall transfer all Foreground IP to Client, who hereby accepts such transfer. If required, Unicorn Powered draws up a list of the Foreground IP that shall be transferred after payment of the last invoice. Unicorn Powered grants an exclusive, non-sublicensable, worldwide licence to use (but not modify) the Foreground IP for the period from delivery of the Website and/or App to the time of receipt of payment of the last invoice.
The IP Rights to the Background IP are and remain at all times vested in Unicorn Powered. To the extent that the Background IP is necessary for the use of the Website and/or App, Unicorn Powered grants the Client a non-exclusive, sublicensable, worldwide, free of charge and non-time-limited licence for that part of the Background IP.
Unless agreed otherwise, the source code of the Website and/or App and/or Service and the technical documentation used or produced upon developing the Website shall be made available to the Client.
The Client itself is at all times responsible for the use of the Website and/or App and/or Service. The Client may not use the Website and/or App and/or Service for actions and/or conduct contrary to the Agreement, applicable laws or regulations, public order or morals, or use it in any other unlawful manner. The Client indemnifies Unicorn Powered against all third-party claims and other loss and/or damages relating to any violation of the above.
If the IP-Rights to (part of) the Website and/or the App and/or Service belong to licensors of Unicorn Powered, the Client may be bound by the licence provisions and the terms and conditions of these third parties, including but not limited to content management software or restrictions relating to the issuing of licences, which may influence Sections 3.1 and 3.2.

Delivery, Installation, and Acceptance

Unicorn Powered shall make an effort to deliver the Website and/or App and/or Service in the manner determined in the Agreement.
By way of an acceptance test, it has been agreed that the Website and/or App and/or Service shall be deemed to be accepted on the first day after the test period or, if Unicorn Powered receives a test report before the end of the test period as referred to in Section 4.5, at the moment at which the errors referred to therein have been rectified, without prejudice to the presence of errors which, according to Section 4.8, do not prevent acceptance.
Contrary to the above, the Website and/or App and/or Service shall be deemed to be fully accepted from the time that the Client puts it online or uses it in another way for productive or operational purposes before it has been accepted.
If, during the performance of the agreed acceptance test, it transpires that the Website and/or App and/or Service contains errors that obstruct the progress of the acceptance test, the Client shall provide detailed written information of this to Unicorn Powered, in which case the test period will be interrupted until the Website and/or App and/or Service has been modified in such a way that the obstruction has been removed.
If, during the performance of the agreed acceptance test, it transpires that the Website and/or App and/or Service contains errors, the Client shall inform Unicorn Powered of the errors by means of a detailed written test report no later than on the last day of the test period. Unicorn Powered shall use its best endeavours to remedy the errors within a reasonable period, whereby Unicorn Powered shall be entitled to introduce temporary solutions or software bypasses or problem-evading restrictions into the Website and/or App and/or Service.
The Client may not withhold acceptance of the Website and/or App and/or Service for (i) reasons other than those that are connected with the specifications explicitly agreed between the Parties and/or (ii) due to the existence of minor errors, i.e. errors which would not reasonably preclude putting the Website and/or App and/or Service into operation, notwithstanding Unicorn Powered's obligation to remedy these minor errors on the basis of the guarantee arrangement set out in Section 5 of this Annex, if applicable.
Unicorn Powered shall not be obligated to rectify any errors as referred to in Section 4.5 and Section 4.6 if these have come about as a consequence of:
- a modification to the Website and/or App and/or Service, of any nature whatsoever, which has not been made by Unicorn Powered;
- use of the Website and/or App and/or Service in a manner which is not allowed on the basis of the Agreement;
- incorrect use of the Website and/or App and/or Service, by the Client or another party; or
- input errors or errors connected with the data used by the Client.
If the Website and/or App and/or Service is delivered and tested in phases and/or parts, non-acceptance of a particular phase and/or part shall not affect any acceptance made of a previous phase and/or different part.

Guarantees

After the Client has performed the acceptance test and has accepted the Website and/or App and/or Service, Unicorn Powered shall charge costs for the performance of (rectification) work unless agreed otherwise in writing.
Unless agreed otherwise in writing, Unicorn Powered does not guarantee that the Website and/or App and/or Service functions, or functions properly, in combination with all software (including web browsers, and/or equipment) nor does Unicorn Powered guarantee that the Website and/or App and/or Service functions and/or is accessible without malfunctions, interruptions, or other errors.
If Unicorn Powered delivers a Website and/or App and/or Service to the Client which Unicorn Powered has obtained from its suppliers, Unicorn Powered shall not be obligated vis-à-vis the Client to provide any additional guarantee than that which Unicorn Powered can claim from its supplier.
Parties fully cooperate with (employees of) Unicorn Powered in the provision of Consultancy Services and shall adequately provide (employees of) Unicorn Powered with all the information that is reasonably required in order to properly perform the Consultancy Services.

Updated July, 7th 2024