Last updated 31 March 2021

INTRODUCTION

(A)           This is an Agreement between (i) My Smash Limited with registered office at 82 Wandsworth Bridge Road, London, SW6 2TF (“SMASH”), and (ii) the legal entity identified on the Order Form (“Customer”).

(B)            SMASH has developed certain software applications and platforms, enabling customers to create, store and distribute digital creative pitch documents. SMASH also allows talent and projects to be discovered by third party commissioners.

(C)            SMASH makes the platform and related services available to customers on a SaaS and / or managed services basis, and subject to agreeing an Order Form, SMASH agrees to provide, and the Customer has agreed to take and pay for (as applicable) such services, subject to the terms and conditions of this Agreement.

1. INterpretation

1.1.           In this Agreement, unless the contrary intention appears:

"Additional Modules(s)" means the relevant module made available under this Agreement as itemised in an Order Form and as further described in Schedule 1;

“Agreement” means these terms and conditions together with all the recitals, clauses, schedules, annexes and all other documents referred to herein;

"Authorised Users" means those employees, agents and contractors of the Customer who are authorised by the Customer to use the Services;

“Commissioned Projects” means any Project that receives Funding following discovery on the Platform.

 “Customer Materials” means all materials, text, pictures, images, sound, graphics, video, data, information, logos or other content supplied or used by the Customer in whatever form in connection with Platform (including via the Profile), including amendments, additions to or versions of the Customer Materials, including all pitches and projects, created by or via the Platform or as a result of the Services;

 “Fees” means the fees for any Services as specified in the Order Form and/or the SMASH Pricing Page available here https://mysmash.media/pricing;

“Funding” means any funding or prefunding through payments to the creator in any way, including  option, development, production, commission and/or licensing fees

"Intellectual Property Rights" means all intellectual property rights, howsoever arising and in whatever media, whether or not registered or capable of registration, including copyright, database rights, confidential information, patents, trademarks, service marks, trade names, design rights, moral rights, business names, domain names and other similar rights and any applications for the protection or registration of these rights and all renewals and extensions thereof throughout the world; 

“Laws” means any applicable legislation, regulation, by law, ordinance, subordinate legislation, code of practice, published guidance and other requirement of any relevant government or governmental agency;

“Order Form” means the specific order for Services agreed between the parties confirming details of the agreed use the Platform, Services and any Additional Modules;

“Order Form Date” means the date of the Order Form as set out on the Order Form;

 “Platform” means the SMASH software platform via which the Services are made available, (save for any Third Party Tools accessed via the Platform), and all versions, amendments and improvements thereto and/or any other tools, methods, models, know how, code, functionality or other elements owned or developed by SMASH including during the provision of the Services;

“Platform Data” means all usage and/or statistical or other data, information, learnings or know how related to and/or derived from the use of the Platform by customers and users, only in anonymised and aggregated form, and at all times not including Customer Confidential Information.

 “Profile” means any profile or account information you submit or make public within the Platform including the Talent Discoverer tool.

“Project” means any project or pitch that is created and/or registered on the SMASH Platform.

“Services” means any services to be supplied by SMASH under this Agreement via the Platform, including access to and provision of the Additional Modules (which may be supplied via further professional services, for example in the case of the Sales Estimator), as itemised in the Order Form;

“Term” means the term of the Agreement as provided for in clause 14;

“Third Party Tools” means third party services, content, assets or other third party materials, items or rights used or enabled by SMASH in the provision of the Services, such as the Getty Images Easy Access Programme.

“Virus” means any “back door”, “Trojan Horse”, “time bomb”, “worm”, “drop dead device”, “virus” or other software intended or designed, or having the effect, to disable, erase, corrupt, destroy or otherwise damage or interfere with, or provided unauthorised access to, computer systems or any software stored on those computer systems; 

“Working Day” means any day other than a Saturday, a Sunday or a day which is a public or bank holiday in England and Wales.

1.2.           In this Agreement, unless the context otherwise requires:

(a)            words importing a gender include any other gender;

(b)            words in the singular include the plural and vice versa;

(c)            a reference to a person shall include a company, partnership, joint venture, association, corporation or other body corporate;

(d)            a reference to any Law or standard shall include a reference to that Law or standard as amended, extended, consolidated or re-enacted from time to time;

(e)            a reference to a document shall include all authorised amendments, supplements to and replacements to that document;

(f)             a reference to the parties shall include their permitted successors and assigns;

(g)            where a word or a phrase is given a particular meaning, other grammatical forms of that word or phrase shall have corresponding meanings; and

(h)            the words ‘include’, ‘including’, ‘for example’ or similar words shall be construed as illustrative and without limitation to the generality of the related words.

1.3.           The headings are inserted for convenience only and shall not affect the construction of this Agreement.

1.4.          Unless otherwise stated a reference to a clause or a schedule or a party is a reference to a clause in or a schedule to or a party to this Agreement.

1.5.          This Agreement was drafted with the joint participation of the parties and no provisions of this Agreement will be construed adversely to a party solely on the ground that such party was responsible for the preparation of this Agreement.

1.6.          In the event of any conflict between these general terms and an Order Form these general terms will take precedence save to the extent specifically amended by the Order Form.

2. SERVICES AND PLATFORM ACCESS

2.1.          Subject to submission and agreement of a relevant Order Form as approved by SMASH, and receipt of any applicable Fees in accordance with the payment terms, SMASH will provide the Services to the Customer including a non-exclusive, non-transferable, royalty free right to access and use the Platform, in accordance with the permissions, restrictions and other details set out in the Order Form, solely for the Customer's own business purposes, and subject to the terms and conditions of this Agreement.

2.2.          No Order Form submitted by a prospective customer is effective unless approved by SMASH.  Once such Order Form is agreed, it will be effective and be binding on the parties incorporating these Terms of Service.

2.3.          The rights and services provided under this Agreement are granted to the Customer only, and shall not be considered granted to any subsidiary, affiliate or holding company of the Customer.

2.4.         Updates: We may update the details or functionality of the Services from time to time, and you should regularly check the Platform to see if any changes have been made. In relation to updates that materially affect our legal relationship, we will notify you. Ongoing use following such changes or notification will be deemed acceptance of the changes.  If you do not want to continue with the Agreement following any changes, please notify us.

3. PROFILES and the TALENT DISCOVERER TOOL

3.1.          In order to use the Services, including the Talent Discoverer tool, the Customer must register and create a Profile. 

3.2.          For full information about the how to use the Talent Discoverer tool and the options, sharing and privacy settings available under the Profile, please see our FAQ at https://help.mysmash.media/.

3.3.          If you are registering, creating a Profile and/or otherwise using the Platform on behalf of company or other body or organisation, you confirm that you have the authority to act on their behalf and to bind them legally, and to permit access on their behalf to other Authorised Users.

3.4.          The registered entity / Profile owner is solely responsible for providing (and keeping updated) true, accurate and lawful information under its Profile. The registered entity /  Profile owner will be responsible for any use of the Profile or activity on the Platform through the Profile and/or through use of the login or password by its Authorised Users or otherwise.

4. THIRD PARTY TOOLS

4.1.          In the event any Third Party Tools (such as Getty Images Easy Access Programme) are selected to be used by the Customer under the Services, the Customer will be required to enter into a standard licensing agreement with such Third Party. Separate licensing fees may be payable by the Customer to the Third Party under such license.

4.2.          The Customer acknowledges that SMASH has no control over such Third Parties, the Customer should read and be satisfied with the terms and conditions of any licensing arrangements with such Third Parties, and uses such services at its own risk.

4.3.          The Customer hereby indemnifies and keeps SMASH indemnified against any losses, damages, claims and cost suffered by SMASH as a result of the Customer breaching any licensing terms in relation to the Third Party Tools, or otherwise using the Third Party Tools beyond the permitted use.

5. CUSTOMER MATERIALS

5.1.          The Customer shall remain the owner of all Customer Materials (as further detailed in clause 10.2) at all times, and to the extent necessary merely licenses and rights required by SMASH in order for SMASH to provide the Services.

5.2.          The Customer warrants and represents that the Customer Materials as used on or via the Platform or otherwise in relation to the Services:

(a)            will not infringe the statutory, common law, or Intellectual Property Rights or any other right, title or interest, of any third party;

(b)            will not, (nor shall the Customer otherwise use the Platform  or Services in a way that could) be unlawful, harmful, threatening, defamatory, obscene, indecent, infringing, discriminatory, hateful, abusive, harassing or racially or ethnically offensive, facilitate illegal activity, promote unlawful violence, or be in breach of any confidentiality.

5.3.          The Customer specifically acknowledges and agrees that, despite the Services provided and the functionality made available to the Customer via the Platform, including the Additional Modules, or Services:

(a)            the Customer has sole responsibility and liability for the Customer Materials including but not limited to its use and publication and/or any rights or other clearances, or other editorial and legal compliance, and all other aspects of the Customer Materials and its use via the Platform and or elsewhere;

(b)            as between the Customer and SMASH, the Customer is deemed to have editorial control over and be the publisher of all Customer Materials displayed on the Platform and/or elsewhere

5.4.          Notwithstanding any of the above, SMASH reserves the right to remove or block Customer Materials from the Platform in the event that in its reasonable opinion it breaches the terms of this Agreement.

5.5.          The Customer grants SMASH, only to the extent necessary to provide the Services, the right and licence to use, reproduce, publish, make available such Customer Materials including the promotion and provision of access to other users as required and/or instructed by the Customer.

6. SMASH'S OBLIGATIONS AND WARRANTIES

6.1.          SMASH shall perform the Services with reasonable skill and care and in accordance with good industry practice.

6.2.          SMASH warrants and represents that:

(a)            it has full right, power and authority to enter into this Agreement;

(b)            it has all the rights, licences, permits, approvals and clearance of third party rights as required by the Laws and as are necessary to perform its obligations and grant the relevant rights under this Agreement;

(c)            the Platform and/or Services will, to the best of its knowledge, not infringe the statutory, common law, or Intellectual Property Rights of any third party;

(d)            it will comply with all applicable Laws with respect to its activities under this Agreement.

6.3.          SMASH's obligations and warranties with regard to Platform, and/or Services and other provisions of this Agreement shall not apply to the extent of any non-conformance which is caused: by use contrary to the terms of the Agreement and/or SMASH's reasonable instructions; by combination or integration with any third party content or services contrary to the terms of the Agreement; by the Customer Materials, or integration with any Customer systems; or by other Customer breach of the Agreement. 

6.4.          Save as expressly set out in this Agreement, all other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement whether by statute, common law or otherwise, are hereby excluded to the fullest extent permitted by law, including, without limitation, any implied conditions, warranties or other terms as to satisfactory quality and fitness for purpose.

6.5 In any event, SMASH:

(a)            SMASH is not providing business or financial advice, and the Services and outputs from the Additional Modules, including for example the Sales Estimator, do not amount to advice, recommendations or endorsements of any projects or strategy. The Customer acknowledges that it should review and or take its own advice on the output form the Services, and such outputs from the Services, Platform and Additional Modules are used at the Customers own risk. And in any event, the sales estimates provided under the Sales Estimator not guaranteed figures but reasonable estimates for rights deals, and are subject to actual circumstances and changes in the market.

(b)            does not warrant that the Customer's use of the Platform and/or Services will be uninterrupted or error-free; and

(c)            is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Platform and/or Services are dependent on various third party networks, platforms, services, infrastructures and API's, and as such SMASH can give no guarantee of availability or functionality, and the Platform and/or Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities and third party networks, platforms, services, infrastructures and API's; and

(d)            makes no warranties or other assurances as that the Platform, Additional Modules and/or Services will meet the Customer's requirements or produce any specific business benefits, have any particular effectiveness nor create any revenue or other benefits.

7.  CUSTOMER'S OBLIGATIONS AND WARRANTIES

7.1.          The Customer warrants and represents :

(a)            it has full right, power and authority to enter into this Agreement;

(b)            it has all the rights, licences, permits, approvals and clearance of third party rights as required by the Laws and as are necessary to perform its obligations under this Agreement including the supply of the Customer Materials;

(c)            it accepts responsibility for the selection of the Platform and/or Services to achieve its intended results;

(d)            it will and the Customer Materials will comply with all applicable Laws with respect to its activities under this Agreement;

7.2.          In relation to the Authorised Users, the Customer shall:

(a)            not provide access to the Platform other than to its Authorised Users;

(b)            procure that each Authorised User keeps secure the password and account details for their use of the Platform, and that such password is kept confidential;

(c)            ensure that the Authorised Users, are notified of the relevant terms and conditions, rules or restrictions relating to their usage and access of the Platform and/or Services, and in any event that they use the Platform and/or Services in accordance with the terms and conditions of this Agreement, and the Customer shall be responsible for any Authorised User’s breach of this Agreement.

7.3.          The Customer shall not and shall not permit any third party to:

(a)            attempt to download, copy, modify, create derivative works from, frame, mirror, republish or distribute any portion of the Platform except to the extent expressly set out in this Agreement; or

(b)            attempt to copy, adapt, decompile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or

(c)            access the Platform in order to build a product or service which competes with the Platform and/or the Services;

(d)            resell, sublicense or otherwise use the Platform and/or Services to provide services to third parties, unless otherwise specifically agreed in writing; or

(e)            attempt to obtain, or assist third parties other than Authorised Users, in obtaining, access to the Platform.

7.4.          The Customer shall ensure that it takes all necessary steps to prevent any unauthorised access to, or use of, the Platform and notify SMASH immediately of any such unauthorised access or use.

7.5.          The Customer shall not access, store, distribute or transmit any Viruses into or via the Platform and/or Services.

7.6.          Customer shall obtain and maintain the insurance as is necessary to cover its liabilities under this Agreement and as required by law with a reputable insurer and provide details and evidence of the insurance to SMASH on request during the Term. 

8. DATA PROTECTION

8.1.          SMASH’s use of personal data is subject to the SMASH Privacy Policy available here https://mysmash.media/privacy-policy.

9. FEES

9.1.          The Customer will pay SMASH the non-refundable Fees for providing the Services including any Additional Modules.

9.2.          All sums payable under the Agreement will be paid by electronic transfer to SMASH's bank account or such bank account SMASH may specify from time to time. Any charges on payments will be at the Customer's expense.

9.3.          All sums payable under this Agreement are exclusive of VAT which will be payable in addition to the sum in question at the rate and in the manner prevailing at the relevant tax point.

9.4.          Fees and expenses are payable within 30 days of Customer’s receipt of SMASH's properly submitted invoice, unless agreed otherwise in the Order Form.

9.5.          If any sums due under this Agreement are not paid when due SMASH may charge interest in respect of those sums from the date due until payment is made in full (before and after any judgment) at 4% per annum over Barclays Bank Plc base rate from time to time accruing on a daily basis, and SMASH may suspend the Customer's access to the Platform and/or Services.

PLEASE NOTE:

9.6.          In the event that a Project becomes a Commissioned Project:

(a)             fees will be due to SMASH as a % of the Funding amounts payable to the Customer from the entity commissioning the Project.  In most cases such fees will be recovered by SMASH from the commissioning entity; and

(b)             fees may be payable by the Customer to Getty Images under the Customers own direct contract with Getty Images as referred to in clause 4 above..

10. INTELLECTUAL PROPERTY RIGHTS

10.1.        The Customer acknowledges and agrees that SMASH and/or its licensors own all Intellectual Property Rights in the Platform, Services, Platform Data and Third Party Tools. Except as stated in this Agreement SMASH does not grant the Customer any rights in respect of the Platform, Services, Platform Data and/or Third Party Tools or any related documentation.

10.2.        SMASH acknowledges and agrees that the Customer and/or its licensors own all Intellectual Property Rights in the Customer Materials, save for the avoidance of doubt in any elements relating to the Platform, Platform Data and Third Party Tools. To the extent necessary to effect such ownership, SMASH by way of future assignment hereby assigns, subject to payment of the relevant Fees, all such Intellectual Property Rights to the Customer throughout the world in perpetuity. Except as necessary to fulfil the Services or as stated in this Agreement the Customer does not grant SMASH any rights in respect of the Customer Materials. 

11. INDEMNITIES

11.1.        SMASH will indemnify the Customer from and against any and all losses, damages, claims, costs and expenses (including reasonable external legal expenses) suffered or incurred by or awarded against the Customer as payable  to any such third party for claims or actions as a result of or in connection with any breach by SMASH of clause 6.2.

11.2.        The Customer will indemnify SMASH from and against any and all losses, damages, claims, costs and expenses (including reasonable external legal expenses) suffered or incurred by or awarded against SMASH as payable to any such third party for claims or actions as a result of or in connection with any breach by the Customer of clause 5.2 and 7.1.

11.3.        Each Party will fully indemnify the other from and against any and all losses, damages, claims, costs and expenses (including reasonable external legal expenses) suffered or incurred by or awarded against the other as a result of or in connection with:

(a)            any breach by the other of clause 12 (Confidentiality);

(b)            any breach by the other of clause 8 (Data Protection).

11.4.        In all cases the indemnified party agrees to:

(a)            promptly notify the indemnifying party of any allegation of infringement which comes to its attention and give the indemnifying party all reasonable assistance;

(b)            make no admission relating to any infringement or alleged infringement; and

(c)            allow the indemnifying party to conduct and settle all negotiations and proceedings, save that the indemnifying party may not conclude settlement of any negotiations and proceedings which may have a material effect (whether financial, practical or in terms of reputation) on the indemnified party without the indemnified party’s prior written consent which will not be unreasonably withheld.

12. CONFIDENTIALITY

12.1.        Neither party shall without the consent of the other during the term of this Agreement or following its termination use the other party's "Confidential Information" (meaning all information in any form which is secret or not publicly available either in its entirety or in part including commercial, financial, marketing, or technical information, know how, trade secrets, business methods and other information in any form, and any reproductions of such information in any form or any part(s) of this information) for any purpose other than as strictly necessary in connection with this Agreement nor disclose to any other person unless necessary for the performance of obligations under this Agreement.

12.2.        Any party disclosing Confidential Information in accordance with the above clause shall procure that the person to whom such information is disclosed is made aware of the obligations of confidentiality under this Agreement and complies with those obligations as if it were a party to this Agreement.

12.3.        The confidentiality restrictions do not apply to Confidential Information:

(a)            which is in or comes into the public domain other than through breach of this Agreement;

(b)            insofar as it comes lawfully into the possession of the recipient party from a third party;

(c)            which the recipient party can prove was already known to it before its receipt from the providing party;

(d)            to the extent that it is required to be disclosed by law or the requirements of any recognised stock exchange, or authority of competent jurisdiction to whose rules the party making the disclosure is subject, whether or not having the force of law.

12.4.        SMASH acknowledges that the Customer Materials are the Confidential Information of the Customer.

12.5.        The Customer acknowledges that details of this Agreement, Fees, Platform and/or the Services, are the Confidential Information of SMASH.

13. LIMITATION OF LIABILITY

13.1.        Nothing in this Agreement shall in any way exclude or limit either party’s liability for death or personal injury caused by negligence or for fraud or fraudulent misrepresentation or for any other liability which may not be excluded by law.

13.2.        Subject to clause 13.1, neither party will be liable, whether in contract, tort (including negligence) breach of statutory duty, or otherwise, for any of the following losses or damage (whether or not such losses or damage were direct, foreseen, foreseeable, known or otherwise) howsoever arising in respect of any:

(a)            special, indirect, incidental or consequential loss or damage;

(b)            loss of actual or anticipated profits;

(c)            loss of business or contracts;

(d)            loss of revenue or of the use of money;

(e)            loss of anticipated savings;

(f)             loss of goodwill; and/or

(g)            loss of data;

arising out of or in connection with this Agreement.

13.3.        Subject to clause 13.1, and clause 11.3 (a) (Confidentiality), or the obligation to pay the Fees, for which there will be no cap on liability, each party’s total aggregate liability arising out of, or in connection with this Agreement whether in contract, tort (including negligence) breach of statutory duty, or otherwise, shall:

(a)            in relation to the indemnities in clause 11 be capped at £1,000,000 (one million pounds);

(b)            otherwise in no event exceed the annual Fees paid by the Customer in the previous 12 months.

13.4.        If at any time an allegation of infringement is made in respect of the Platform and/or Services, SMASH may at its own expense:

(a)            modify the Platform and/or Services;

(b)            replace the Platform and/or Services with non-infringing software or Services; and/or

(c)            require the Customer to alter the way in which it uses the Platform and/or Services,

so as to avoid the infringement or alleged infringement, in all cases without diminishing or curtailing any of the material functions or facilities or the performance of the Platform and/or Services.  If it is unable to do the above, SMASH may terminate this Agreement and refund pro rata to the Customer such part of any sums paid by the Customer which relate to the unexpired portion of the Agreement

14. TERM AND TERMINATION

14.1.        This Agreement shall, commence on the Order Form Date and shall continue until terminated as provided herein.

14.2.        At the end of the Initial Term the Agreement will automatically renew for success periods equal to the Initial Term unless terminated by either party 30 days or more in advance of the end of the then current period.  The Initial Term and all renewals will collectively be deemed to be the Term.

14.3.        Either party (the "Terminating Party") may terminate this Agreement in relation to an Order Form immediately by giving written notice to the other (the "Defaulting Party") if:

(a)            the Defaulting Party is in material breach of any provision of this Agreement in relation to that Order Form which is not remediable or, if remediable, is not remedied with a period of 20 Working Days after the Terminating Party has given notice to the Defaulting Party requiring such breach to be remedied;

(b)            the Defaulting Party's financial position is such that either the Defaulting Party, its directors, shareholders or creditors take or are entitled to take steps to institute formal insolvency proceedings with respect to the Defaulting Party of a type provided for by the Insolvency Act 1986 (or any similar or analogous legislation, whether under English law or otherwise), including without limitation administration, liquidation, administrative receivership, receivership, voluntary arrangement, scheme of arrangement or bankruptcy, or if the Defaulting Party is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986.

14.4.        SMASH may terminate this Agreement by giving not less than 14 days' written notice to the Customer if the Customer fails to make any overdue payment to SMASH within 30 days of the Customer receiving a written notice from SMASH demanding such overdue payments.

14.5.        On termination of this Agreement for any reason:

(a)            all licences granted under shall immediately terminate;

(b)            the Customer shall return and make no further use of the Platform  documentation and other items (and all copies of them) belonging to SMASH;

(c)            SMASH may destroy or otherwise dispose of any of the Customer Materials in its possession unless SMASH receives, no later than ten Working Days after the effective date of the termination, a written request for the delivery to the Customer of the then most recent back-up of the Customer Materials. SMASH shall use reasonable commercial endeavours to deliver the back-up to the Customer within 90 days of its receipt of such a written request, provided that the Customer has, at that time, paid all Fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by SMASH in returning or disposing of Customer Materials;

(d)            the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced; and

(e)            Customer shall promptly pay all undisputed Fees related to the period prior to termination, including relating to Services provided and not yet invoiced on a pro rata basis.

15. FORCE MAJEURE

15.1.        Neither party shall have any liability or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that party including, without limitation, any of the following: a) an act of God, flood, storm, drought, earthquake, or other natural disaster; (b) adverse weather conditions; (c) any cause or event arising out of or attributable to war, civil commotion or terrorist activity (or threat thereof); (d) any law, or any governmental order, rule or regulation; (e) fire or explosion; (f) labour dispute including strikes, industrial action, lockouts or boycott; (g) a shortage of raw materials; (h) power outages, blockages, or internet or telecoms failure; and (i) any epidemic or pandemic and compliance with any applicable governmental guidelines designed to prevent the spread of the relevant disease.  The party affected by such circumstances shall promptly notify the other party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.

15.2.        If an event of force majeure occurs and lasts for more than 90 days either party may give written notice to the other to terminate this Agreement and neither party will have any liability to the other except that the Customer will remain liable for any unpaid fees.

16. WAIVER

The failure or delay by either party in any one or more instances to insist upon strict performance or observance of any one or more of the terms of this Agreement or to exercise any remedy, privilege or right provided by law or under this Agreement shall not be construed as a waiver of any breach or right to enforcement of such terms or to exercise such remedy, privilege or right.

17. SEVERANCE

If any part of this Agreement is found by any court or competent authority to be illegal, void or unenforceable then that part shall be deemed not to be a part of this Agreement and the enforceability of the remainder of this Agreement shall not be affected.

18. ASSIGNMENT AND SUBCONTRACTING

Neither party shall, without the prior written consent of the other assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

19. VARIATION

This Agreement may not be varied except by an instrument in writing signed by the authorised representatives of all the parties to this Agreement.

20.           RELATIONSHIP BETWEEN THE PARTIES

Nothing in this Agreement shall be deemed to constitute a partnership or joint venture or contract of employment between the parties nor constitute either party the agent of the other.

21. RIGHTS OF THIRD PARTIES

This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

22. PUBLICITY

22.1.        Neither party shall make or issue any announcement or public circular relating to the subject matter of this Agreement without the prior written approval of the other.

22.2.         Subject to further agreement in writing, SMASH may use the name of Customer and samples of the services provided and/or deliverable created by SMASH or Customer as a factual reference to the fact that the Customer is or was a customer, on its website and in pitch materials.

23. NOTICES

23.1.        Each notice or other communication to be given under this Agreement shall be given in writing in English and, unless otherwise provided, shall be made by hand, letter or email and will be addressed to the other party's contact as stated in  the Order Form or other contact as agreed from time to time.

23.2.        Notice delivered by hand will be deemed to have been received when delivered. Posted notice will be deemed received at the time at which it would have been delivered in the normal course of the post. Any notice given in accordance with the above but received on a day which is not a business day or after normal business hours in the place of receipt shall be deemed to have been received on the next business day.

24. ENTIRE AGREEMENT

24.1.        This Agreement, and any documents explicitly referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover and/or any purchase order terms from the Customer.

24.2.        Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.

25. GOVERNING LAW AND JURISDICTION

This Agreement and any disputes relating to it will be governed by and construed in accordance with English law and the parties submit to the exclusive jurisdiction of the English courts for such purposes. 

Schedule 1

Services and Additional Modules Descriptions

The names, descriptions and functionality of the various services and modules may be updated from time to time.  The initial functionality includes but is not limited to the below descriptions, and any updates will be notified to the Customer.

●        Pitch Creator: enables the Customer to create, update and host their Project on SMASH. 

●        Pitch Protector: enables the Customer to:

o   Register their Project on the SMASH platform;

o   Create an encrypted snapshot of the Project in its current state;

o   Access a record of these snapshots;

o   Share these Project snapshots.

●        Sales Estimator: provides the Customer with a sales forecast for their Feature Film Project.

●        Getty Images Easy Access Programme. : enables the Customer to access non-watermarked assets from the Getty Images library for use in their Projects, subject to terms of use as supplied by Getty Images.

●       Talent Discoverer : allows Commissioners or other Commissioning Parties to discover Customers or Projects that are of interest, and to connect with these Customers.