SMARTFRAME EMBEDDER TERMS AND CONDITIONS
1.1. The definitions and rules of interpretation in this clause 1.1 apply in this Agreement.
Agreement means these terms and conditions and any schedules or annexes added or incorporated from time to time.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: all confidential information (however recorded or preserved) disclosed by a party or its Representatives to the other party or its Representatives whether before or after the date of this Agreement, which would be regarded as confidential by a reasonable business person whether or not such information (if in anything other than oral form) is marked confidential or not.
Customer means the individual or company electing to take the SmartFrame Images to be hosted on the Customer Website pursuant to this Agreement.
Customer Website means the website owned and operated by the Customer on which SmartFrame Images are to be displayed.
Data Protection Legislation means all applicable data protection, privacy and electronic marketing legislation, including the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003, Regulation (EU) 2016/679, and any codes of practice relating to the same.
Effective Date: the date the Customer agrees to this Agreement.
Embed Widget means the aspects of the SmartFrame Technology which allows Customer to select certain images to be converted to Smartframe Images in order to be embedded on the Customer Website.
Indemnified Party means the party entitled to indemnification under this Agreement.
Indemnifying Party means the party who must indemnify the Indemnified Party under this Agreement.
Intellectual Property Rights means patents, utility models, rights to inventions, copyright and related rights, trade marks, service marks, business names and domain names, publicity rights, personality rights, rights to privacy, rights against false advertising, unfair competition, and false endorsement, rights against the falsification, removal or alteration of copyright management information, rights against and related to the circumvention of copyright protection systems, rights against trademark dilution, false designation of origin, and false descriptions, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered, whether grounded in law or equity, and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Personal Data means any data that constitutes personal data (as defined in Article 4 of Regulation (EU) 2016/679).
Services means the limited access to the SmartFrame Technology available under this Agreement to embed SmartFrame Images on the Customer Website.
SmartFrame means SmartFrame Technologies Limited, a company registered in England under number 08652873 whose registered office is at 5 Fitzhardinge St, London, W1H 6ED, United Kingdom.
SmartFrame Images means images that have been converted to SmartFrame format and are provided to Customer to display on its website and which are available for tracking and serving of advertising by SmartFrame.
Representatives means, in relation to a party, its employees, officers, agents, representatives and advisers.
SmartFrame Technology means the SmartFrame innovative image technology, including the SmartFrame Panel and Embed Widget, that increases protection and attribution to image files and allows the serving of advertising in and around such images and in terms of the “SmartFrame format”, the manner in which such an encrypted image file including visual features enabled by the SmartFrame Technology is presented on the Customer Website.
Term means the period for which Customer is granted access to the SmartFrame Technology, pursuant to clauses 2 and 14 below.
1.2. Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7. A reference to a statute or statutory provision is a reference to it as it is in force at the date of this Agreement.
1.8. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
1.9. References to clauses and schedules are to the clauses and schedules of this Agreement.
1.10. References to a party shall mean either the Customer or SmartFrame as applicable.
This Agreement shall commence on the Effective Date and shall continue for as long as the SmartFrame Images are used or hosted on the Customer Website or otherwise unless terminated earlier in accordance with the terms of this Agreement.
3. LICENCE GRANT AND SERVICES
3.1. In consideration of SmartFrame’s right to serve advertising within the SmartFrame Images, SmartFrame hereby grants to the Customer, in accordance with the terms and conditions of this Agreement, a non-exclusive, non-transferable right to permit the Customer to: use the SmartFrame Images and associated SmartFrame Technology on the Customer Website.
3.2. Customer will receive the SmartFrame embed code through the Embed Widget in order to display the SmartFrame Images on the Customer Website.
3.3. By accepting the embed code and these terms and conditions (as amended from time to time), Customer accepts SmartFrame’s instructions, restrictions and/or guidelines in relation to the SmartFrame Images, including the serving of advertising through the SmartFrame Images.
3.4. SmartFrame will broker and serve the advertising directly through the SmartFrame Images on the Customer Website.
4.1. In performing its obligations under this Agreement, Customer warrants and represents that:
(a) it has the right, power and authority to enter into this Agreement, comply with its terms and grant to SmartFrame the rights contemplated and/or contained herein;
(b) no content on the Customer Website shall infringe any applicable laws, regulations or the Intellectual Property Rights of any third party;
(c) it shall comply with any reasonable additional or special responsibilities and obligations as specified by the SmartFrame from time to time;
(d) it shall inform SmartFrame in a timely manner of any matters (including any health, safety or security requirements) which may affect the performance of the obligations; and
(e) it shall obtain and maintain all necessary licences, permits and consents required to enable SmartFrame to perform its obligations under this Agreement and to co-operate in doing so where required.
4.2. SmartFrame: (a) does not warrant that the Customer’s use of the SmartFrame Technology will be uninterrupted or error-free; and (b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of content and data over communications networks and facilities, including the internet.
4.3. SmartFrame may alter or improve at any time during the Term, without notice to the Customer the content, format, features or nature of the SmartFrame Technology or the SmartFrame format.
5. CUSTOMER OBLIGATIONS
5.1. The Customer shall:
a. ensure that its network and systems comply with the relevant specifications provided by SmartFrame from time to time;
b. comply with all applicable laws and regulations with respect to its activities under this Agreement, including the use of the SmartFrame Technology;
c. comply, as soon as reasonably practicable, with all SmartFrame’s reasonable requests for information or assistance;
d. obtain and maintain all necessary licences, consents, and permissions necessary for it to perform its obligations and exercise its rights under this Agreement;
e. co-operate with SmartFrame in any manner reasonably required by SmartFrame in order to carry out its obligations under this Agreement, including provision of appropriate information, data and assistance requested and providing access to the Customer’s systems for the purpose of carrying out diagnostics and correction of defects.
5.2. The Customer acknowledges that SmartFrame may monitor performance of the SmartFrame Images to ensure quality, improve SmartFrame products and services and verify the Customer’s compliance with this Agreement. The Customer will not interfere with this monitoring.
5.3. The Customer understands, acknowledges and agrees that nothing in this Agreement will impact or derogate any obligations that Customer has to any third parties regarding the use of any Intellectual Property Rights pertaining to images converted to the SmartFrame format hereunder, including but not limited to any obligations that Customer might have to the owner of the copyrights to said images and their respective representatives and agents.
6. USE RESTRICTIONS
6.1. Except as expressly set out in this Agreement or as permitted by any applicable law, the Customer shall:
a. prevent any unauthorised access to, or use of, the SmartFrame Technology and, in the event of any such unauthorised access or use, promptly notify SmartFrame;
b. not copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the SmartFrame Technology or image files rendered in the SmartFrame format in any form or media or by any means;
c. not reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the SmartFrame Technology;
d. not access all or any part of the SmartFrame Technology in order to build a product or service which competes with the products and services offered by SmartFrame;
e. not remove, alter, or obscure any copyright, trademark or other proprietary rights notices, or falsity or delete any author attributions or legal notices, displayed in the SmartFrame format, including any copy thereof;
f. not use the SmartFrame Technology to provide services to third parties outside of its normal business operations; and
g. not license, sell, rent, lease, transfer, assign, distribute, display, disclose, commercially exploit, or otherwise make the SmartFrame Technology available to a third party.
6.2. The Customer hereby agrees that when using the SmartFrame Technology it will comply with all applicable laws and regulations and the terms of this Agreement. The Customer agrees that, in relation to any Personal Data SmartFrame is given access to for processing, the Customer is the “data controller” for the purposes of the Data Protection Legislation. Further, the Customer agrees that it shall not:
a. use SmartFrame Technology in any unlawful manner, for any unlawful purpose or in a manner which facilitates, promotes or encourages illegal activity;
b. itself breach nor in any way contribute to SmartFrame breaching any aspect of the Data Protection Legislation;
c. infringe the rights, including any intellectual property or privacy rights, of any third party;
d. provide false, inaccurate or misleading information, in particular with regards to source ownership as displayed in the SmartFrame format;
e. introduce viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful; and/or
a. use the Technology in a way that could reasonably be expected to damage, disable, overburden, impair or adversely compromise SmartFrame systems or security or knowingly interfere with other users, or knowingly disrupt or interfere with any limitations on use of the SmartFrame Technology.
The parties acknowledge that SmartFrame is not charging any fees to Customer for the use of the SmartFrame images on the Customer Website in consideration of SmartFrame’s right to serve advertising in and around the SmartFrame Images and retain all revenue relating to the same.
8.1. SmartFrame reserves the right in its sole discretion to suspend or temporarily or permanently revoke the Customer’s use of the SmartFrame Images or SmartFrame Technology with or without notice if SmartFrame reasonably suspects the Customer’s access to or use of the same is in violation of the terms of this Agreement.
9.1. The Customer agrees to display any attribution(s) within the SmartFrame format or otherwise, as reasonably required by SmartFrame. SmartFrame hereby grants to the Customer a non-transferable, non-sublicensable, non-exclusive licence during the Term to display the SmartFrame name and logo for the purpose of promoting or advertising that the Customer uses the SmartFrame Technology. The Customer must only use the SmartFrame name and logo for the purpose of fulfilling its obligations under this clause 9 and in accordance (as determined by SmartFrame in its sole discretion) with any guidelines provided by SmartFrame to the Customer.
9.2. In the course of promoting, marketing, or demonstrating the SmartFrame Technology the Customer is using, SmartFrame may produce and distribute depictions, including screenshots, video, or other content from the Customer’s Website featuring image files rendered in the SmartFrame format, and may use the Customer’s company or product name in such regard. The Customer hereby grants SmartFrame all necessary rights for the above purposes.
10. INTELLECTUAL PROPERTY RIGHTS
10.1. SmartFrame is, and shall remain, the owner or the licensee of all Intellectual Property Rights in the SmartFrame Technology. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, any rights or licences in respect of the SmartFrame Technology.
11. CONFIDENTIAL INFORMATION
11.1. During the Term, and for a period of two (2) years after termination of this Agreement, each party shall keep the other party’s Confidential Information confidential and shall not:
a. use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this Agreement (Permitted Purpose); or
b. disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 11.
11.2. The restriction in clause 11.1 does not apply to any use or disclosure authorised by the disclosing party or as required by law, or any information which is already in, or comes into, the public domain otherwise than through a party’s unauthorised disclosure.
12.1. In relation to SmartFrame, except as expressly and specifically provided in this Agreement:
a. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
b. the SmartFrame Technology and the Documentation are provided to the Customer on an “as is” basis.
12.2. Nothing in this Agreement excludes or limits SmartFrame’s liability for death or personal injury arising from the party’s negligence, or the party’s fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited by English law.
12.3. Subject to clause 12.1 and 12.2:
a. SmartFrame shall not be liable to Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, for any loss of profit or for any indirect, special, consequential or incidental losses or damages of any kind arising under or in connection with this Agreement
b. SmartFrame’s maximum aggregate liability to the Customer under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to £1,000.
The Customer agrees to defend, indemnify and hold harmless SmartFrame in full and on demand from and against any loss, damage, cost, expense, action, claim or proceeding of whatever nature (“Claim”) or expenses which SmartFrame may suffer or incur directly or indirectly as a result of a breach, negligent performance or non-performance of these terms and conditions by the Customer.
14.1. Either party may terminate this Agreement without notice at any time by removing and/or disabling the embed code from the Customers website
14.2. On termination or expiry of this Agreement for any reason:
a. all licences granted under this Agreement shall immediately terminate;
b. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement shall not be affected or prejudiced;
c. the Customer shall ensure cessation of any use of the SmartFrame Technology by or through it, including the removal of all image files displayed in the SmartFrame format from the Customer’s Website and anywhere else that the Customer has published or shared image files displayed in the SmartFrame format;
d. any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
15.1. Force majeure. Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for one month, either party may terminate this Agreement by giving five Business Days’ written notice to the other party.
15.2. Assignment. Neither party may assign this agreement (other than as part of a company restructuring and/or to a group company) without the written consent of the other party, such consent not to be unreasonably withheld or delayed.
15.3. No agency. Nothing in this Agreement is intended to or shall operate to authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way.
15.4. Entire Agreement. This Agreement constitutes the entire Agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
15.5. Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, or prevent or restrict the further exercise of that or any other right or remedy.
15.6. Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable.
15.7. Notices. Any notice required or permitted to be given by any party to the other party under this agreement shall be in writing addressed to the relevant party at its address stated in the Swap-Out Form or at such other address as may at the relevant time have been notified pursuant to this clause 15.8 and shall be delivered by hand or sent by registered or recorded delivery post. Where given by registered or recorded delivery post such notice shall be deemed to be served 48 hours after posting and proof that the envelope containing the notice was properly addressed and prepaid shall be sufficient evidence of service. Notice given by hand shall be deemed served immediately.
15.8. Third party rights. No one other than a party to this Agreement shall have any right to enforce any of its terms.
15.9. Conflict. In the event of a conflict between the terms and conditions in any order form (whether online or otherwise), these terms and conditions and the schedules or annexes, the Swap-out request form shall take precedence followed by these terms and conditions followed by the schedules or annexes.
15.10. Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of England and each of the parties hereto irrevocably submits to the exclusive jurisdiction of the English courts.