Bonusly Terms and Conditions of Service

Welcome to Bonusly. The Bonusly website (the "Site") provides information about Bonusly and Bonusly’s employee experience platform (the “Service”). For Bonusly registered users, the Site, together with Bonusly’s mobile app (the “App”) and application programming interface (the “API”), also provides a platform and tools for using the Service and is considered a part of the Service.

1. Acceptance of Terms and Conditions of Service.‍

Smartly, Inc. (d/b/a "Bonusly") provides the Site and the Service, including the App, the API and any functionality and services offered on or through the Site and the Service, to you subject to these Terms and Conditions of Service (this “TOS”).

This TOS includes Bonusly’s Privacy Policy, which explains how Bonusly collects, uses and protects data from visitors to the Site and users of the Service. If you do not agree with any part of this TOS, you may not use the Site or the Service in any way. Your use of the Site indicates your acceptance of this TOS. Use of the App and certain portions of the Site are only available to Bonusly registered users. If you are a Bonusly registered user, your use of the Site and the Service is conditioned on your acceptance of these TOS. If your organization has entered into a commercial agreement with Bonusly, including any agreement or addendum related to the protection of personal data (a “Customer Agreement”), then (i) the terms of the Customer Agreement govern the relationship between your organization and Bonusly, and this TOS governs your individual use of the Site and the Service, and (ii) if there is any conflict between this TOS and the Customer Agreement, the Customer Agreement will take precedence over this TOS.

2. Site Access and Account Security.

Bonusly grants you a limited, non-exclusive, non-transferable, revocable license to (i) access and use the Site and, (ii) if you are a registered user, to access and use the Service through your browser, the App or an Integration (defined below) during the subscription term set forth in an applicable Order (defined below), in accordance with this TOS and any Customer Agreement between you and Bonusly only for your personal or internal business purposes

You will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service or any software, documentation or data related to the Service (“Software”); modify, translate, or create derivative works based on the Service or any Software (except to the extent expressly authorized within the Service); use the Service or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.

From time to time, Bonusly may make available to its customers and their users certain API, which may include browser or other application plugins, sample code, and related documentation and other related materials. If you are a registered user that is an organization, then you may use the API for your internal business purposes to develop or enable web or other software services or applications (“Integrations”) that will communicate and interoperate with the Service. Notwithstanding anything in this TOS or other agreement between you and Bonusly to the contrary, the API is provided “as is,” and Bonusly makes no representation or warranty of any kind in connection with the API, including without limitation any representation or warranty that the API, Integrations, or any products or results of the use of the API or Integrations will meet your requirements, achieve any intended result, be compatible or work with any third party’s or your software, systems or other services.

If you are an organization that is a Bonusly customer, then you may designate authorized users of your organization’s account. Your authorized users will have the ability to access your organization’s account and to take any actions that users are authorized to take under this TOS and any applicable Customer Agreement.

If you are an organization, you hereby represent and warrant that: (a) you have taken all necessary corporate action to authorize your agreement to these TOS and have granted the person agreeing to these TOS on your behalf, sufficient authority to bind you to these TOS; and (b) you are solely responsible for your authorized users’ access to, security of and use of the Service or Site (inclusive of their own equipment, accounts, passwords and files), and you will ensure that they comply with these TOS. If you establish or are given a user account as an employee or contractor of an organization that is a Bonusly customer, you represent that you are authorized by your organization to do so, and you agree to use the Site and the Service solely as authorized by your organization

To access certain areas of the Site and the Service, you may be asked or required to provide certain registration details or other information. It is a condition of your use of the Site and the Service that all such details and information that you provide be correct, current, complete and you have the applicable legal authority to provide such information. You expressly agree that all information you provide to register with Bonusly is subject to the terms of Bonusly’s Privacy Policy, and you consent to all actions we take with respect to your information consistent with Bonusly’s Privacy Policy.

If you choose or are provided with a username, password or any other information as part of the security features of the Site or the Service, you agree to treat such information as confidential, and you agree not to disclose it to any other person or entity. Your user account, if applicable, is personal to you, and you agree not to provide any other person with access to the Site or the Service through your user account. You agree to notify Bonusly immediately if you become aware of any unauthorized access or use of your user name, password or other security information.

Bonusly reserves the right to prevent access to the Site and the Service by any unauthorized user, or any user who Bonusly has reason to believe is in breach of this TOS.     

3. Subscription and Payment Terms.

Your Bonusly subscription is activated when your instance with Bonusly becomes live, providing access to the Service. This subscription remains active until terminated by either party in accordance with these TOS. You agree to pay (and have your credit card be charged) for all fees associated with your acceptance of a Paid Subscription Order. “Paid Subscription Order” means any order placed by you (including, without limitation, accepting a quote or proposal via an online form or in writing) for purchase of an ongoing paid subscription to the Service. If you fail to pay any fees at the due dates or any recurring fees required under the applicable Paid Subscription Order, then you will not be permitted to use the Service. All payment obligations are non-cancelable and all amounts paid are non-refundable, except for amounts paid in error. Except as otherwise expressly specified in an applicable Paid Subscription Order, fees and other charges do not include federal, state or local sales, foreign withholding, use, property, excise, service, or similar taxes (including any sales or value added taxes) (“Taxes”) now or hereafter levied, all of which are your responsibility.

Bonusly is committed to the continuous enhancement of the Site and Service and may modify subscription plans, roll out new features, or phase out existing ones. We ensure that such changes do not materially diminish the value of the Service. Ensuring uninterrupted access, your subscription will automatically renew at the end of each billing cycle. Opt-out requires notification at least 30 days before the current term's conclusion. You may cancel your subscription at any time, with the cancellation taking effect at the end of the current billing cycle. Should you elect to cancel before the term's conclusion, you are responsible for all charges incurred until the end of the cycle. These charges are non-refundable, emphasizing the commitment to the subscription period. 

4. Intellectual Property Rights; Trademarks.

Except as otherwise expressly stated in this TOS, the Site and the Service, and their entire contents, features and functionality (including, but not limited to, all information, software, text, displays, images, media, and the design, selection and arrangement thereof), are owned by Bonusly, its licensors or other providers of such materials and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. No right, title or interest in or to the Site or any part of the Service is transferred to you, and all rights not expressly granted to you in this TOS are reserved by Bonusly.

Without limiting the foregoing paragraph, the name Bonusly, the Bonusly logo and all other trademarks, logos, product and service names, designs and slogans ("Marks") displayed on the Site or through the Service are trademarks of Bonusly or its licensors. You must not use any Marks for any purpose without prior, written permission from Bonusly or its applicable licensor.

5. User Content.

Portions of the Site and the Service include interactive features, such as messaging functions (recognition posts and other forms of feedback ), comment features, personalized areas, and profiles that allow registered users to post, display or transmit messages, content and other materials (collectively, "User Content").

Bonusly is under no obligation to review any User Content and assumes no responsibility or liability relating to any User Content. Bonusly may block, reject and/or remove any User Content at any time in its sole discretion.

You represent and warrant that you own or control all rights in and to all User Content that you post, display or transmit through the Site or the Service and that you have the right to grant the license granted below to us and our licensees, successors and assigns. You also represent and warrant that all of your User Content does and will comply with this TOS. You understand and acknowledge that you are responsible for any User Content you submit or contribute, and you, not Bonusly, shall be liable for such User Content, including its legality, reliability, accuracy and appropriateness.

Any User Content you post, display or transmit through the Site or the Service may be visible to other authorized users within your organization’s account. By providing any User Content, you grant to Bonusly and its licensees, successors and assigns the right to use, reproduce, modify, perform, display, and distribute any such User Content, but only for (i) purposes of operating and providing the Site and the Service to you and to your organization and other authorized users in your organization, if applicable according to your account settings or the terms of your organization’s Customer Agreement, and (ii) Bonusly's business and training purposes  including without limitation for analyzing usage of and improving its Site and the Service.

6. Monitoring and Enforcement; Termination.

You understand and acknowledge that Bonusly has the right to:

• Remove or refuse to post or transmit any User Content for any or no reason in its sole discretion.
• Take any action with respect to any User Content that Bonusly deems necessary or appropriate in its sole discretion, including if Bonusly believes that such User Content violates this TOS, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Site or the Service or could create liability for Bonusly or its customers or other users.
• Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
• Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Site or the Service.
• Terminate or suspend your access to all or part of the Site or the Service, including for any violation of this TOS, subject to the termination provisions of any applicable Customer Agreement between your organization and Bonusly.

Without limiting the foregoing, Bonusly has the right to cooperate with any law enforcement authorities or court order requesting or directing Bonusly to disclose the identity or other information of anyone posting any materials on or through the Site or the Service.

7. Prohibited Uses.

In accessing and using the Site and the Service, you agree not to reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any portion of the Site or any material on the Site, except that (i) your computer or device may temporarily store copies of such materials in memory incidental to your accessing, viewing or posting such materials, (ii) you may store files that are automatically cached by your browser for display purposes, (iii) if Bonusly provides you with a mobile or other application for download, you may download a single copy to your computer or device solely for your own personal use, subject to this TOS, and (iv) if Bonusly provides you with access to interactive features of the Site and the Service, you may take such actions as are enabled by such features.

In addition, in connection with your use of the Site and the Service you agree not to:

• Download or copy the Site or any content or account information for the benefit of another vendor or any other third party.
• Cache or create, post or transmit any unauthorized hypertext links to the Site or frame any part of the Site or any content.
• Post, transmit or link to any User Content that you do not have a right to make available (such as material that infringes any patent, trademark, trade secret, copyright or other intellectual property rights or any other person).
• Post, transmit or link to any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
• Use any data mining, robots, spiders or other automatic devices, processes or means to access, monitor or copy any part of the Site or any materials made available on the Site or through the Service.
• Bypass any measures used by Bonusly to prevent or restrict access to the Site or the Service.
• Post, transmit or link to any material that is deceptive, defamatory, obscene, indecent, abusive, offensive, harassing, sexually explicit, discriminatory or otherwise objectionable.
• Violate any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding data privacy or the export of data or software to and from the U.S. or other countries).
• Post, transmit or link to any confidential, personal data not otherwise specifically required to use any feature of the Site or the Service,
• Exploit, harm or attempt to exploit or harm minors in any way.
• Post, transmit, link to, knowingly receive, download, use or re-use any material which does not comply with the User Content requirements set out in this TOS or in violation of Bonusly’s Privacy Policy.
• Use the Site or the Service in any way to express or comment on any political point of view or to contact or communicate with anyone who does not know you or would be unlikely to recognize you as a known contact.
• Post, transmit or link to any advertising or promotional material, except solely in connection with the peer-recognition functionality of the Site and the Service to other users in your organization, to the extent intended by Bonusly and your organization.
• Post, transmit or link to chain letters or other repetitive communications, comments or materials, including without limitation communications to distribution lists, newsgroup aliases or group aliases.
• Impersonate or attempt to impersonate Bonusly, a Bonusly employee, another user or any other person or entity, or create any impression of endorsement by Bonusly, or any other person without such person’s express written consent.
• Engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Site or the Service, or which, as determined by Bonusly, may harm Bonusly or other users of the Site or the Service.
• Use the Site or the Service in any manner that, in Bonusly’s sole determination, could disable, overburden, damage, or impair the Site or the Service or interfere with any other party's use of the Site or the Service.
• Otherwise attempt to interfere with the proper working of the Website.

8. Disclaimer of Warranties; Limitation of Liability.

BONUSLY WILL USE COMMERCIALLY REASONABLE EFFORTS CONSISTENT WITH PREVAILING INDUSTRY STANDARDS TO MAINTAIN THE SITE AND THE SERVICES IN A MANNER WHICH SEEKS TO MINIMIZE ERRORS AND INTERRUPTIONS TO THE SERVICES. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, AND ANY WARRANTY CONTAINED IN YOUR ORGANIZATION’S CUSTOMER AGREEMENT, IF ANY, YOUR USE OF THE SITE, ITS CONTENT, AND THE SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR THE SERVICES IS AT YOUR OWN RISK, AND THE SITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER BONUSLY NOR ANY PERSON ASSOCIATED WITH BONUSLY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SITE OR THE SERVICE. WITHOUT LIMITING THE FOREGOING, NEITHER THE BONUSLY NOR ANYONE ASSOCIATED WITH BONUSLY REPRESENTS OR WARRANTS THAT THE SITE, ITS CONTENT, THE SERVICE OR ANY ITEMS OBTAINED THROUGH THE SITE OR THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVICE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

BONUSLY HEREBY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

, IN NO EVENT WILL BONUSLY, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SITE, THE SERVICE, OR ANY CONTENT MADE AVAILABLE ON THE SITE OR THROUGH THE SERVICE, INCLUDING ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, REGARDLESS OF THE CAUSE OF ACTION (INCLUDING TORT AND BREACH OF CONTRACT OR OTHERWISE), EVEN IF FORESEEABLE, AND WHETHER OR NOT BONUSLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BONUSLY’S LIABILITY FOR DIRECT DAMAGES, IF ANY, SHALL IN THE AGGREGATE BE LIMITED TO THE AMOUNTS PAID BY YOU TO BONUSLY IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO SUCH LIABILITY.

9. Indemnity.

You agree to defend, indemnify and hold harmless Bonusly (and its officers, directors, employees, agents, affiliates, contractors, licensors, suppliers, successors and assigns) from and against any claims, demands, liabilities, damages, judgements, awards, losses, costs (including reasonable attorneys’ fees), arising out of or relating to your breach of this TOS, including, but not limited to, your User Content, your violation of any applicable law or the rights of a third party, or your use of the Site or the Service other than as expressly authorized by Bonusly.

10. Electronic Communication.

You consent to receive communications electronically from Bonusly and its affiliates and partners. Bonusly will communicate with you by email or by posting notices on the Site. You agree that all agreements, notices, disclosures and other communications that are provided to you electronically satisfy any legal requirement that such communications be in writing.

11. Links.

The Site or third parties may provide links to other Websites or resources. Because Bonusly has no control over such sites and resources, you acknowledge and agree that Bonusly is not responsible for the availability of such external sites or resources and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Bonusly shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.

12. Changes to this TOS.

Bonusly reserves the right to revise this TOS at any time and in Bonusly's sole discretion. Bonusly will indicate at the top of this TOS the date it was last revised. Any changes will be effective immediately upon posting the revised version (or such later effective date as may be indicated at the top of the revised TOS). It is your responsibility to regularly check the Site to determine if there have been changes to this TOS and to review such changes. Your continued use of the Site and/or the Service following the posting of any changes to this TOS will constitute your acceptance of any such changes. If you do not agree to the changes, you must stop using the Site and the Service.

13. Procedure for Claims of Copyright Infringement.

Bonusly respects the intellectual property of others, and we expect our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please contact Bonusly’s Copyright Agent at support@bonus.ly and provide the following information:

1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
2. a description of the copyrighted work or other intellectual property that you claim has been infringed;
3. a description of where the material that you claim is infringing is located on the Site;
4. your address, telephone number, and email address;
5. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
6. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
7. Bonusly’s agent for notice of claims of copyright or other intellectual property infringement can be reached as follows:
   By email: support@bonus.ly

14. Miscellaneous.

If any provision of this TOS is deemed by a competent court to be invalid, void, or unenforceable, the parties agree that the court should endeavor to give effect to the parties’ intentions as reflected in the applicable provision, and any unenforceable provision shall be deemed severable and shall not affect the validity and enforceability of any remaining provision. From time to time, Bonusly may offer special promotional offers which may or may not apply to your Bonusly account. Headings are for reference purposes only and do not limit the scope or extent of such section. This TOS and the relationship between you and Bonusly will be governed by the laws of the state of Delaware without regard to its conflict of law provisions. You and Bonusly agree to submit to the personal jurisdiction of the federal and state courts located in the state of Delaware with respect to any legal proceedings that may arise in connection with this TOS. Notwithstanding any other provisions of this TOS, or any general legal principles to the contrary, any provision of this TOS that imposes or contemplates continuing obligations on a party will survive the expiration or termination of this TOS. Any failure of Bonusly to act with respect to a breach by you or others shall not serve as a waiver of its right to act with respect to subsequent or similar breaches. Except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to this TOS. Except for the applicable terms of any Customer Agreement between your organization and Bonusly, this TOS constitutes the entire agreement between you and Bonusly with respect to the Site and the Service, superseding any prior understandings, representations, and agreements between you and Bonusly with respect to the Site and the Service.

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