TERMS AND CONDITIONS OF USE
- The following definitions and rules of interpretation in this clause 1.1 shall apply to these Terms.
Advertise: means the placement within a SmartFrame Image of any audio, visual, or audio-visual data or content made available by an advertiser. Advertised and Advertising shall be construed accordingly.
Embed Code: means the component of the SmartFrame Technology which allows a SmartFrame Image to be displayed on a Site.
Intellectual Property Rights: means any and all present and future, know-how, trade secrets, inventions, patents, and other confidential information, registered designs, copyrights, database rights, the sui generis rights of extraction relating to databases, design rights, logos, trademarks, service marks, emblems, insignia, identifying music and sounds, get-up, domain names, business names, trade names, moral rights, performance rights, and other intellectual property rights of whatever nature, in each case whether registered or unregistered and including applications for registration, and all rights or forms of protection having equivalent or similar effect anywhere in the world.
SmartFrame: means SmartFrame Technologies Limited, a company registered in England under number 08652873 whose registered office is at 5 Fitzhardinge Street, London, W1H 6ED, United Kingdom.
SmartFrame Format: means the manner in which an encrypted image file including visual features and the advertising functions enabled by the SmartFrame Technology is presented on the Site.
SmartFrame Image: means an image owned by or licensed to you that has been embedded on the Site through a SmartFrame Embed Code or any another embed code that is powered by the SmartFrame Technology and which has been converted to the SmartFrame Format.
SmartFrame Technology means the SmartFrame proprietary image technology, including the Embed Code, that increases protection and attribution to image files and allows the serving of Advertising when the advertising function is enabled .
Site: means the website, blog or social media platform on which a SmartFrame Image is displayed.
you: means you, being an individual acting in the course of or in relation to the ownership or operation of the Website and “your” shall be construed accordingly.
Terms: mean these terms and conditions of use.
- Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
- 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.
- A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
- Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
- Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
- A reference to a statute or statutory provision is a reference to it as it is in force at the date of this Agreement.
- 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.
- References to clauses and schedules are to the clauses and schedules of this Agreement.
- References to a party shall mean either the Customer or SmartFrame as applicable.
- LICENCE, ADVERTISING AND SCOPE OF USE
- These Terms shall apply to your use of the SmartFrame Image that you embed on your Site.
- You agree to accept SmartFrame’s instructions, restrictions and/or guidelines in relation to the SmartFrame Images, that may be notified to you from time to time.
- SmartFrame will have sole responsibility for brokering the content Advertised directly through the SmartFrame Images on the Site and you shall not be entitled to any payment or other compensation in relation to such Advertising from SmartFrame, advertisers or any third-party engaged to deliver the Advertising.
- SmartFrame may alter or improve at any time, without prior notice, the content, format, features or nature of the SmartFrame Technology or the SmartFrame Format underpinning the SmartFrame Image displayed on the Site.
- You acknowledge that SmartFrame may monitor the performance of the SmartFrame Image to ensure quality, improve SmartFrame’s products and services and to verify your compliance with these Terms.
- You warrant and represent that: (i) you are over the age of 18 and have the right, power and authority to accept these Terms, comply with its terms and grant to SmartFrame the rights contemplated and/or contained herein; (ii) no content on the Site shall infringe any applicable laws, regulations or the Intellectual Property Rights of any third party; (iii) you shall comply, as soon as reasonably practicable, with any reasonable additional or special responsibilities and obligations as specified by SmartFrame from time to time; (iv) you shall obtain and maintain all necessary licences, permits and consents required to enable SmartFrame to benefit from the use of the SmartFrame Image on the Site; (v) cooperate with SmartFrame as may be reasonably required including with the provision of appropriate information, data and assistance requested and providing access to the Site for the purpose of carrying out diagnostics and correction of defects; and (vi) and shall not act in any manner designed to impede or limit SmartFrame’s ability to implement any component of the SmartFrame Technology including monitoring the performance of the technology in relation to the SmartFrame Image and benefiting from your acknowledgments, warranties, representations and undertakings as set out in these Terms.
- SmartFrame: (i) does not warrant that your use of the SmartFrame Image 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 display of a SmartFrame Image or the integration of SmartFrame’s embed code into the Site.
- USE RESTRICTIONS
- You agree that when using the SmartFrame Technology you will: (i) comply with all applicable laws and regulations as well as these Terms and (ii) prevent any unauthorised access to, or use of, the SmartFrame Image and, in the event of any such unauthorised access or use, promptly notify SmartFrame.
- Except as expressly set out in these Terms, you shall not:
- copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the SmartFrame Image or SmartFrame Technology accessible to in any form or media or by any means;
- reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the SmartFrame Technology;
- 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;
- 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 Image, including any copy thereof;
- use the SmartFrame Technology to provide services to third parties outside of its normal business operations;
- license, sell, rent, lease, transfer, assign, distribute, display, disclose, commercially exploit, or otherwise make the SmartFrame Technology or SmartFrame Image available to a third party;
- use SmartFrame Technology in any unlawful manner, for any unlawful purpose or in a manner which facilitates, promotes or encourages illegal activity;
- infringe the rights, including any intellectual property or privacy rights, of any third party;
- use the SmartFrame 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.
- SmartFrame reserves the right in its sole discretion to suspend or revoke your use of a SmartFrame Image or the SmartFrame Technology with or without notice, and without liability, if SmartFrame reasonably suspects that your use of a SmartFrame Image or access to the SmartFrame Technology violates these Terms.
- You agree to display any attribution(s) within the SmartFrame Image, as reasonably included by SmartFrame. SmartFrame hereby grants you a non-transferable, non-sublicensable, non-exclusive licence to display the SmartFrame name and logo for the purpose of promoting or advertising that you use the SmartFrame Technology. You must only use the SmartFrame name and logo for the purpose of this clause and in accordance (as determined by SmartFrame in its sole discretion) with any guidelines provided to you by SmartFrame.
- In the course of promoting, marketing, or demonstrating the SmartFrame Technology used by its customers, SmartFrame may produce and distribute depictions, including screenshots, video, or other content from the Site featuring SmartFrame Images, and you consent to the use of your company or product name in such regard.
- INTELLECTUAL PROPERTY RIGHTS
- SmartFrame is, and shall remain, the owner or the licensee of all Intellectual Property Rights in the SmartFrame Technology. Except as expressly stated, nothing in these Terms grants or should be construed as granting any rights to, or in, any rights or licences in respect of the SmartFrame Technology.
- In relation to SmartFrame, except as expressly and specifically provided in these Terms: (i) 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; and (ii) the SmartFrame Technology is provided to you on an “as is” basis.
- Nothing in these Terms exclude or limit SmartFrame’s liability for: (i) death or personal injury arising from its negligence; (ii) fraud or fraudulent misrepresentation; or (iii) any other liability that cannot be excluded or limited by English law.
- Subject to clauses 12.1 and 12.2:
- SmartFrame shall not be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, for any loss of profit, business, business opportunity, contracts, anticipated savings, goodwill, revenue or for any indirect, special, consequential or incidental losses or damages of any kind arising under or in connection with your use of the SmartFrame Image or SmartFrame Technology.
- SmartFrame’s maximum aggregate liability to you in respect of all other losses arising under or in connection with these Terms, whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to £1,000.
- You agree to defend, indemnify and hold harmless SmartFrame, its employees, agents, and advertising partners in full and on demand from and against any loss, damage, cost, expense, action, claim or proceeding of whatever nature or expenses which may be suffered or incurred directly or indirectly as a result of your breach of these Terms.
- Your use of a SmartFrame Image pursuant to these Terms may be terminated at any time without notice by removing and/or disabling the embed code relating to the SmartFrame Image to be terminated from the Site.
- On termination of your use of a SmartFrame Image for any reason, in relation to the terminated SmartFrame Image:
- all licences granted under these Terms shall immediately terminate;
- any rights, remedies, obligations or liabilities that have accrued up to the date of termination, including the right to claim damages in respect of any breach of these Terms shall not be affected or prejudiced; and
- any of these Terms that expressly or by implication is intended to come into or continue in force on or after termination of your use of the SmartFrame Image shall remain in full force and effect.
- Assignment. SmartFrame may at any time assign, mortgage, charge, subcontract, delegate or declare a trust over any or all of its rights and obligations under these Terms to or for the benefit of any person.
- No agency. Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between you and SmartFrame, establishes you as SmartFrame’s agent, or authorises you to make or enter into commitments on SmartFrame’s behalf.
- Entire Agreement. These Terms set out the entire agreement between you and SmartFrame in relation to your use of the SmartFrame Image.
- 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.
- Severance. If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable.
- Third party rights. These terms govern your use of the SmartFrame Images as provided by SmartFrame and no other person shall have any rights to enforce any of these Terms, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
- Law and Jurisdiction. These Terms shall be governed by and construed in accordance with the laws of England and you irrevocably submit to the exclusive jurisdiction of the English courts.