SMARTFRAME PANEL AND API LICENSING TERMS AND CONDITIONS
1.1 The definitions and rules of interpretation in this clause 1.1 apply in this Agreement.
SmartFrame Images: are Customer images that have been uploaded into the SmartFrame Panel and which remain available for use by the Customer and its End Users in their day-to-day business, and such shall count toward the total SmartFrame Data in the Subscription Plan.
Agreement: means the Registration Form, these terms and conditions and all schedules or annexes attached hereto.
API: SmartFrame’s application programming interface(s) which converts a standard image file into an encrypted image file capable of being rendered in a SmartFrame format on the Customer’s Website and elsewhere online and which also allows control of how those images appear, operate and/or can be used online.
Authorised Users: the employees, agents and/or contractors of the Customer who are authorised by the Customer to use the API.
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, including but not limited to:
details of the SmartFrame Technology;
the contents of this Agreement and the Documentation;
all keys, passwords, user identification codes and other pieces of information used as part of SmartFrame security procedures; and
any information that would be regarded as confidential by a reasonable business person relating to
(i) the business, affairs, customers, clients, suppliers, plans, intentions or market opportunities of SmartFrame or the Customer; and
(ii) the operations, processes, product information, know-how, designs, trade secrets or software of SmartFrame or the Customer,
whether or not such information (if in anything other than oral form) is marked confidential or not.
Customer: means the customer identified in the Registration Form.
Customer Website: a website owned and operated by the Customer as may be identified on the Registration Form, on which image files are 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.
Documentation: the documents made available to the Customer by SmartFrame in writing from time to time or online via www.smartframe.io or such other web address notified by SmartFrame to the Customer from time to time which sets out a description of the SmartFrame Technology and the user instructions for the SmartFrame Technology.
Effective Date: the date the Customer agrees to this Agreement.
End User: means any user of the Customer’s website or services.
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: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, 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 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.
Licence Fee: the fee payable by the Customer to SmartFrame for use of the SmartFrame Technology, calculated in accordance with the Subscription Plan and as specified in the Pricing Schedule and shall be based on the SmartFrame Data usage at any time during the Term.
Personal Data: means any data that constitutes personal data (as defined in Article 4 of Regulation (EU) 2016/679).
Pricing Schedule: means the document detailing the Licence Fees payable according to the relevant Subscription Plan applicable from time to time and as available at www.smartframe.io/pricing and the current version of which is attached hereto;
Registration Form: the form by which Customer provides information to SmartFrame and accepts the terms and conditions forming the Agreement;
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.
Representatives: means, in relation to a party, its employees, officers, representatives and advisers.
“SmartFrame Technology”: means the SmartFrame innovative image technology that increases protection and attribution of image files including the API and SmartFrame Panel, and in terms of the “SmartFrame format”, the manner in which an encrypted image file returned by the API is presented on the Customer Website, including visual features enabled by the SmartFrame Technology
SmartFrame Panel: means the panel interface, its functionality, its user interface, user experience and the look and feel of it through which Customer may access the SmartFrame Technology to set up and manage its SmartFrame Images
SmartFrame Data: the amount of data storage capacity and data transfer usage required to process, store and manage the SmartFrame Images in use by the Customer
Subscription Plan: the plan in the Pricing Schedule setting out the Licence Fee payable for the applicable capacity and/or usage tier of SmartFrame Data in use and/or required by the Customer, and as may be varied pursuant to this Agreement from time to time.
Term: means the period for which you are granted access to the SmartFrame Technology, including the API and use the SmartFrame Panel pursuant to clause 3.1 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.
2.1 This Agreement shall commence on the Effective Date and shall continue for the Term unless terminated earlier in accordance with the terms of this Agreement.
3. LICENCE GRANT AND SCOPE
3.1 SmartFrame hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to:
a. access and use the SmartFrame Panel;
b. use the SmartFrame Technology on the Customer’s Website, including by embedding and displaying encrypted image files, editing and customising any text or visual components of the SmartFrame format; and
c. access and use of the Documentation;
solely for the Customer’s business operations and on the terms and conditions set out in this Agreement.
3.2 Subject to the limitations and restrictions set forth in this Agreement, the licence granted in clause 3.1 above, shall allow the Customer to sub-license the SmartFrame Technology:
a. solely to the extent necessary to allow End Users to use the embed code, or otherwise to access and use the Image(s), or otherwise to access and use the SmartFrame Images; and
b. provided that the Customer has an agreement in place with its End Users with the same or similar Use Restrictions as set out in clause 6.
4. SMARTFRAME OBLIGATIONS
4.1 SmartFrame shall use reasonable endeavours to ensure that the SmartFrame Technology will, during the Term, perform substantially in accordance with the Documentation. This undertaking shall not apply to the extent of any non-conformance which is caused by Customer’s use of the SmartFrame Technology contrary to SmartFrame instructions, or their alteration by any party other than SmartFrame or SmartFrame duly authorised contractors or agents.
4.2 Notwithstanding the foregoing, SmartFrame: (a) does not warrant that the Customer’s use of the SmartFrame Technology will be uninterrupted or error-free; or that the SmartFrame Technology and/or the Documentation will meet the Customer’s requirements; 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. The Customer acknowledges that the API may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
4.3 Subject to clause 4.2, SmartFrame may alter or improve at any time during the Term, without notice to the Customer: (a) the content, format, features or nature of the SmartFrame Technology or the SmartFrame format; and (b) the means of the Customer’s access to the API or interaction with the SmartFrame Technology.
5. CUSTOMER’S OBLIGATIONS
5.1 The Customer acknowledges that, as consideration for the grant of the licence in clause 3 during the Term, it shall provide SmartFrame with details of all ideas, suggestions, modifications, improvements and all other information that may be of benefit to SmartFrame in relation to the use, look, functions, features or operability of the SmartFrame Technology and the SmartFrame format.
5.2 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 the Customer 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 the provision of information and data, making available suitably qualified employees and contractors of the Customer and providing access to the Customer’s systems for the purpose of carrying out diagnostics and correction of defects.
5.3 The parties acknowledge and agree that SmartFrame is not responsible for storing, securing or backing up the Customer’s image files, including their encrypted equivalents. Such acts are the sole responsibility of the Customer and SmartFrame shall not be liable for the loss, deletion of or failure to store any of the image files transmitted through the use of the API.
5.4 The Customer acknowledges that SmartFrame may monitor the use of the API to ensure quality, improve SmartFrame products and services and verify the Customer’s compliance with this Agreement. This monitoring may include SmartFrame accessing and using the Customer’s API credentials, for example, to identify security issues that could affect SmartFrame or its users. The Customer will not interfere with this monitoring.
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 API 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 falsify 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;
g. not interfere with or disrupt the API or the servers or networks providing the API; and
h. not license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise 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;
f. use the API in a way that could damage, disable, overburden, impair or compromise SmartFrame systems or security or interfere with other users, or disrupt or interfere with any limitations on use of the API.
6.3 In relation to the Authorised Users, the Customer shall:
a. ensure that access to the SmartFrame Panel and SmartFrame Technology is not shared beyond the number of Authorised Users who are permitted to exercise the rights granted in clause 3;
b. ensure that the Authorised Users are notified of and comply with the terms and conditions of this Agreement, and the Customer shall be responsible for any breach of this Agreement by such Authorised User;
c. provide SmartFrame with information abou