MOTORSPORT IMAGES & SMARTFRAME EMBED IMAGE LICENSE AGREEMENT

LAST UPDATED: February 2020

This is a license agreement between you and Motorsport Images that explains how you can use photos, text, and video clips (individually and collectively, “content”) that you license from Motorsport Images. By downloading content from Motorsport Images, you accept the terms of this agreement.

  1. What types of licenses does Motorsport Images offer? Motorsport Images offers one type of license model, which is rights-managed (“RM”). Rights-managed content is licensed for specific types of use, and pricing is based on factors such as size, placement, duration of use, and geographic distribution.

    Comp license: You are welcome to use content from the Motorsport Images site on a complimentary basis for test or sample (composite or comp) use only, for up to 30 days following download. However, unless a license is purchased, content cannot be used in any final materials or any publicly available materials. No other rights or warranties are granted for comp use.

  2. How can I use licensed content? You may use licensed content in any way consistent with the rights granted below and not restricted (see Restricted Uses below). Subject to those restrictions and the rest of the terms of this agreement, the rights granted to you by Motorsport Images are Rights-Managed.

    Worldwide, meaning content can be used in any geographic territory. 

    Unlimited, meaning content can be used an unlimited number of times. 

    Any and all media, meaning content can be used in print, in digital or in any other medium or format. 

    Non-Exclusive, meaning that you do not have exclusive rights to use the content. Motorsport Images can license the same content to other customers. If you would like exclusive rights to use royalty-free content, please contact Motorsport Images to discuss a buy-out.

    Limited to the specific use, medium, period of time, print run, placement, size of content, and territory selected, and any other restrictions that accompany the content on the Motorsport Images website (or any other method of content delivery) or in an order confirmation or invoice. 

    For purposes of this agreement, “use” means to copy, reproduce, modify, edit, synchronize, perform, display, broadcast, publish, or otherwise make use of. Please make sure you read the Restricted Uses section below for exceptions.

  3. Restricted Uses.

    1. No Unlawful Use. You may not use content in a pornographic, defamatory or other unlawful manner, or in violation of any applicable regulations (including for sports content, any restrictions or credentials issued by a sports league or governing body) or industry codes.

    2. No Commercial Use of Editorial Content. Unless additional rights are specified on the Motorsport Images invoice or sales order, or granted pursuant to a separate license agreement, you may not use content marked “editorial” for any commercial, promotional, advertorial, endorsement, advertising or merchandising purpose. This type of content is not model or property released and is intended to be used only in connection with events or topics that are newsworthy or of general public interest.

    3. No Alteration of Editorial Content. Content marked “editorial” may be cropped or otherwise edited for technical quality, provided that the editorial integrity of the content is not compromised, but you may not otherwise alter the content.

    4. No Standalone File Use. You may not use content in any way that allows others to download, extract, or redistribute content as a standalone file (meaning just the content file itself, separate from the project or end use).

    5. No Sensitive Use Without Disclaimer. If you use content that features models or property in connection with a subject that would be unflattering or unduly controversial to a reasonable person (for example, sexually transmitted diseases), you must indicate: (1) that the content is being used for illustrative purposes only, and (2) any person depicted in the content is a model. For example, you could say: “Stock photo. Posed by model.” No disclaimer is required for content marked “editorial” that is used in a non-misleading editorial manner.

    6. No False Representation of Authorship. You may not falsely represent that you are the original creator of a work that is made up largely of licensed content. For instance, you cannot create artwork based solely on licensed content and claim that you are the author.

    Restricted Uses - unless additional license purchased. The following are prohibited without the prior written consent of Motorsport Images and payment of an additional license fee:

    1. No “On Demand” Products. Unless you purchase a custom license, you may not use content in connection with "on demand" products (e.g., products in which a licensed image is selected by a third party for customization of such product on a made-to-order basis), including, without limitation, postcards, mugs, t-shirts, calendars, posters, screensavers or wallpapers on mobile telephones, or similar items.

    2. No Electronic Templates. Unless you purchase a custom license, you may not use content in electronic or digital templates intended for resale or other distribution (for example, website templates, business card templates, electronic greeting card templates, and brochure design templates).

    3. No Use in Trademark or Logo. Unless you purchase a custom license, you may not use content as part of a trademark, design mark, tradename, business name, service mark, or logo.

  4. Who, besides me, can use the licensed content? The rights granted to you are non-transferable and non-sublicensable, meaning that you cannot transfer or sublicense them to anyone else. There are two exceptions:

    1. Employer or client. If you are purchasing on behalf of your employer or client, then your employer or client can use the content. In that case, you represent and warrant that you have full legal authority to bind your employer or client to the terms of this agreement. If you do not have that authority, then your employer or client may not use the content. The rights purchased may only belong to you or your employer/client, depending on who is named as the “Licensee” at the time of purchase.

    2. Subcontractors. You may allow subcontractors (for example, your printer or mailing house) or distributors to use content in any production or distribution process related to your final project or end use. These subcontractors and distributors must agree to be bound by the terms of this agreement and may not use the content for any other purpose.

  5. User Accounts. You will be responsible for tracking all activity for each user account, and you agree to: (a) maintain the security of all passwords and usernames; (b) notify Motorsport Images immediately of any unauthorized use or other breach of security; and (c) accept all responsibility for activity that occurs under each user account. Motorsport Images reserves the right to monitor downloads and user activity to ensure compliance with the terms of this agreement. If Motorsport Images determines that you are in breach of this or any other term of this agreement, it may suspend access to your account and seek further legal remedies.

  6. Intellectual Property Rights.

    1. Who owns the content? All of the licensed content is owned by Motorsport Images. All rights not expressly granted in this agreement are reserved by Motorsport Images and the content suppliers. You may not assert any right to revenue from a collecting society in respect of photocopying, digital copying or other secondary uses of the licensed content.

    2. Attribution.

      1. Do I need to include a photo credit? You do not need to include a photo credit for commercial use, but if you are using content for editorial purposes, you must include the following credit adjacent to the content or in production credits: “[Photographer Name]/[Collection Name]/Motorsport Images”

      2. Do I need to include a video credit? If licensed content is used in an audio/visual production where credits are accorded to other providers of licensed material, you must include the following credit in comparable size and placement: “[Video] [Imagery] supplied by [Artist Name]/[Collection Name]/Motorsport Images”

    3. Can I use the Motorsport Images name or logo, or the name and logos of its content suppliers? You may use the name of Motorsport Images and/or its content suppliers as necessary to give attribution, but you may not otherwise use their names, logos, or trademarks without prior written approval.

  7. Termination/Cancellation/Withdrawal.

    1. Termination. Motorsport Images may terminate this agreement at any time if you breach any of the terms of this or any other agreement with Motorsport Images, in which case you must immediately: cease using the content; delete or destroy any copies; and, if requested, confirm to Motorsport Images in writing that you have complied with these requirements.

    2. Social Media Termination. If you use the content on a social media platform or other third party website and the platform or website uses (or announces that it plans to use) the content for its own purpose or in a way that is contrary to this agreement, the rights granted for such use shall immediately terminate, and in that event, upon Motorsport Images’ request, you agree to remove any content from such platform or website.

    3. Refunds/Cancellation. All requests for refunds/cancellations must be made in writing. Provided that the request is made within 7 days and the licensed content has not been used, Motorsport Images may cancel the relevant order and issue a full refund to your account or credit card. No credits or refunds are available for cancellation requests received more than 7 days from your receipt of content, or for research, lab, service or subscription fees, all of which are non-refundable. In the event of cancellation, your rights to use the content terminate, and you must delete or destroy any copies of the content.

    4. Content Withdrawal. Motorsport Images may discontinue licensing any item of content at any time in its sole discretion. Upon notice from Motorsport Images, or upon your knowledge, that any content may be subject to a claim of infringement of a third party’s right for which Motorsport Images may be liable, Motorsport Images may require you to immediately, and at your own expense: cease using the content, delete or destroy any copies; and ensure that your clients, distributors and/or employer do likewise. Motorsport Images will provide you with replacement content (determined by Motorsport Images in its reasonable commercial judgment) free of charge, subject to the other terms of this agreement.

  8. Representations and Warranties. Motorsport Images makes the following representations and warranties:

    1. Warranty of Non-Infringement. For all licensed content (excluding content marked “access only”), Motorsport Images warrants that your use of such content in accordance with this agreement and in the form delivered by Motorsport Images (that is, excluding any modifications, overlays or re-focusing done by you) will not infringe on any copyrights or moral rights of the content owner/creator.

    2. Warranty Disclaimer. Unless specifically warranted above, Motorsport Images does not grant any right or make any warranty with regard to the use of names, people, trademarks, trade dress, logos, registered, unregistered or copyrighted audio, designs, works of art or architecture depicted or contained in the content. In such cases, you are solely responsible for determining whether release(s) is/are required in connection with your proposed use of the content, and you are solely responsible for obtaining such release(s). You acknowledge that no releases are generally obtained for content identified as “editorial,” and that some jurisdictions provide legal protection against a person’s image, likeness or property being used for commercial purposes when they have not provided a release. You are also solely responsible for payment of any amounts that may be due under, and compliance with any other terms of, any applicable collective bargaining agreements as a result of your use of the licensed content.

    3. Caption/Metadata Disclaimer. While Motorsport Images has made reasonable efforts to correctly categorize, keyword, caption and title the content, Motorsport Images does not warrant the accuracy of such information, or of any metadata provided with the content.

    4. No Other Warranties. Except as provided in this section above, the content is provided “as is” without representation, warranty or condition of any kind, either express or implied, including, but not limited to, implied representations, warranties or conditions of merchantability, or fitness for a particular purpose. Motorsport Images does not represent or warrant that the content or its websites will meet your requirements or that use of the content or websites will be uninterrupted or error free.

  9. Indemnification/Limitation of Liability.

    1. Indemnification of Motorsport Images by you. You agree to defend, indemnify and hold harmless Motorsport Images and its parent, subsidiaries, affiliates, and content suppliers, and each of their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside legal fees) arising out of or in connection with (i) your use of any content outside the scope of this agreement; (ii) any breach or alleged breach by you (or anyone acting on your behalf) of any of the terms of this or any other agreement with Motorsport Images; (iii) your failure to obtain any required release for your use of content, (iv) your infringement of any third party intellectual property right or right of publicity.

    2. Indemnification of you by Motorsport Images. Provided that you are not in breach of this or any other agreement with Motorsport Images, and as your sole and exclusive remedy for any breach of the warranties set forth in Section 8 above, Motorsport Images agrees, subject to the terms of this Section 9, to defend, indemnify and hold harmless you, your corporate parent, subsidiaries and affiliates, and each of your respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside legal fees) arising out of or in connection with any breach or alleged breach by Motorsport Images of its warranties in Section 8 above. This indemnification does not apply to the extent any damages, costs or losses arise out of or are a result of modifications made by you to the content or the context in which the content is used by you. This indemnification also does not apply to your continued use of content following notice from Motorsport Images, or upon your knowledge, that the content is subject to a claim of infringement of a third party’s right.

    3. The party seeking indemnification must promptly notify in writing the other party about the claim. The indemnifying party (the one covering the costs) has the right to assume the handling, settlement or defense of any claim or litigation. The indemnified party (the one not covering the costs) has to cooperate in any way reasonably requested by the indemnifying party. The indemnifying party will not be liable for legal fees and other costs incurred prior to the other party giving notice of the claim for which indemnity is sought.

    4. Limitation of Liability. MOTORSPORT IMAGES WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY LOST PROFITS, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF MOTORSPORT IMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY.

  10. General Provisions.

    1. Assignment. This agreement is personal to you and is not assignable by you without Motorsport Images’ prior written consent. Motorsport Images may assign this agreement, without notice or consent, to any corporate affiliate or to any successor in interest, provided that such entity agrees to be bound by these terms.

    2. Audit. Upon reasonable notice, you agree to provide to Motorsport Images sample copies of projects or end uses that contain licensed content, including by providing Motorsport Images with free of charge access to any pay-walled or otherwise restricted access website or platform where content is reproduced. In addition, upon reasonable notice, Motorsport Images may, at its discretion, either through its own employees or through a third party, audit your records directly related to this agreement and your use of licensed content in order to verify compliance with the terms of this agreement. If any audit reveals an underpayment by you to Motorsport Images of five percent (5%) or more of the amount you should have paid, then in addition to paying Motorsport Images the amount of the underpayment and any other remedies to which Motorsport Images is entitled, you also agree to reimburse Motorsport Images for the costs of conducting the audit.

    3. Electronic storage. You agree to retain the copyright symbol, the name of Motorsport Images, the content’s identification number and any other information or metadata that may be embedded in the electronic file containing the original content, and to maintain appropriate security to protect the content from unauthorized use by third parties. You may make one (1) copy of the content for back-up purposes.

    4. Governing Law/Arbitration. This agreement will be governed by the laws of the State of New York, U.S.A., without reference to its laws relating to conflicts of law. Any disputes arising from or related to this agreement shall be finally settled by binding, confidential arbitration by a single arbitrator selected using the rules and procedures for arbitrator selection under the JAMS' Expedited Procedures in its Comprehensive Arbitration Rules and Procedures ("JAMS") if you are in North America, or of the International Centre for Dispute Resolution ("ICDR") or JAMS if you are outside of North America (the applicable rules to be at your discretion), in effect on the date of the commencement of arbitration to be held in one of the following jurisdictions (whichever is closest to you): New York, New York; London, England; Paris, France; Munich, Germany; Madrid, Spain; Milan, Italy; Sydney, Australia; Tokyo, Japan; or Singapore. The arbitration proceedings shall be conducted in English and all documentation shall be presented and filed in English. The decision of the arbitrator shall be final and binding on the parties, and judgment may be entered on the arbitration award and enforced by any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not govern this agreement. The prevailing party shall be entitled to recover its reasonable legal costs relating to that aspect of its claim or defense on which it prevails, and any opposing costs awards shall be offset. Notwithstanding the foregoing, Motorsport Images shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against you in the event that, in the opinion of Motorsport Images, such action is necessary or desirable to protect its intellectual property rights. The parties agree that, notwithstanding any otherwise applicable statute(s) of limitation, any arbitration proceeding shall be commenced within two years of the acts, events or occurrences giving rise to the claim.

    5. Severability. If one or more of the provisions in this agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions should not be affected. Such provisions should be revised only to the extent necessary to make them enforceable.

    6. Waiver. No action of either party, other than express written waiver, may be construed as a waiver of any provision of this agreement.

    7. Entire Agreement. No terms of conditions of this agreement may be added or deleted unless made in writing and accepted in writing by both parties, or issued electronically by Motorsport Images and accepted by you. In the event of any inconsistency between the terms of this agreement and the terms contained on any purchase order sent by you, the terms of this agreement will apply.

    8. Notice. All notices required to be sent to Motorsport Images under this agreement should be sent via email to amanda@motorsport.com. All notices to you will be sent via email to the email set out in your account.

    9. Taxes. You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes, withholding taxes, and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the licensed content.

    10. Interest on Overdue Invoices. If you fail to pay an invoice in full within the time specified, Motorsport Images may add a service charge of 1.5% per month, or such lesser amount as is allowed by law, on any unpaid balance until payment is received.


SMARTFRAME LIMITED EMBED TERMS AND CONDITIONS

The Customer agrees to the Embed Terms and Conditions, which govern the Customer’s use of the SmartFrame Image and the agreement between the parties (the Agreement).

  1. INTERPRETATION

    • 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 41 Corsham Street, London, N1 6DR 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.

  2. TERM

    • 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. WARRANTIES

    • 4.1. In performing its obligations under this Agreement, Customer warrants and represents that:

      1. 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;

      2. no content on the Customer Website shall infringe any applicable laws, regulations or the Intellectual Property Rights of any third party;

      3. it shall comply with any reasonable additional or special responsibilities and obligations as specified by the SmartFrame from time to time;

      4. 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

      5. 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:

      1. ensure that its network and systems comply with the relevant specifications provided by SmartFrame from time to time;

      2. comply with all applicable laws and regulations with respect to its activities under this Agreement, including the use of the SmartFrame Technology;

      3. comply, as soon as reasonably practicable, with all SmartFrame’s reasonable requests for information or assistance;

      4. obtain and maintain all necessary licences, consents, and permissions necessary for it to perform its obligations and exercise its rights under this Agreement;

      5. 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. CUSTOMER OBLIGATIONS

    • 6.1. Except as expressly set out in this Agreement or as permitted by any applicable law, the Customer shall:

      1. 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;

      2. 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;

      3. not reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the SmartFrame Technology;

      4. 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;

      5. 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;

      6. not use the SmartFrame Technology to provide services to third parties outside of its normal business operations; and

      7. 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:

      1. use SmartFrame Technology in any unlawful manner, for any unlawful purpose or in a manner which facilitates, promotes or encourages illegal activity;

      2. itself breach nor in any way contribute to SmartFrame breaching any aspect of the Data Protection Legislation;

      3. infringe the rights, including any intellectual property or privacy rights, of any third party;

      4. provide false, inaccurate or misleading information, in particular with regards to source ownership as displayed in the SmartFrame format;

      5. introduce viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful; and/or

      6. 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.

  7. FEES

    • 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. ACCESS

    • 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. ATTRIBUTION

    • 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

    • 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:

      1. 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

      2. 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. LIABILITY

    • 12.1. In relation to SmartFrame, except as expressly and specifically provided in this Agreement:

      1. 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

      2. 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:

      1. 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

      2. 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.

  13. INDEMNITIES

    • 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. TERMINATION

    • 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:

      1. all licences granted under this Agreement shall immediately terminate;

      2. 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;

      3. 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;

      4. 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. GENERAL

      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.

      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.

      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.

      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.

      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.

      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.

      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.

      8. Third party rights. No one other than a party to this Agreement shall have any right to enforce any of its terms.

      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.

      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.



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