High5 Terms and Conditions of Service

Let’s High5! The High5 website (the “Site”) provides information about High5 and High5’s peer-to-peer recognition service (the “Service”). For High5 registered users, the Site, together with High5’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.

Acceptance of Terms and Conditions of Service.

Smartly, Inc. (d/b/a “High5”) 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 High5’s Privacy Policy, which explains how High5 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 High5 registered users. If you are a High5 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 High5, including any agreement or addendum related to the protection of personal data (a “Customer Agreement”), then

• the terms of the Customer Agreement govern the relationship between your organization and High5, and this TOS governs your individual use of the Site and the Service, and
• if there is any conflict between this TOS and the Customer Agreement, the Customer Agreement will take precedence over this TOS.

Site Access and Account Security.

High5 grants you a limited, non-exclusive, non-transferable, revocable license to

• access and use the Site and,
• 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 High5 only for your personal or internal business purposes.

From time to time, High5 may make available to its customers and their users certain APIs, 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 High5 to the contrary, the API is provided “as is,” and High5 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.

You will pay all fees and at the due dates set forth in the applicable Order for the Service. “Order” means any order placed by you (including, without limitation, accepting a quote or proposal via an online form or in writing) for the purchase of a subscription to the Service. If you fail to pay any fees at the due dates or any recurring fees required under the applicable 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 that are not actually due under the applicable Order. Except as otherwise expressly specified in an applicable Order, fees and other charges described in the applicable Order 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.

If you are an organization that is a High5 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 and use of the Service or Site, 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 High5 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, and complete. You expressly agree that all information you provide to register with High5 is subject to the terms of High5’s Privacy Policy, and you consent to all actions we take with respect to your information consistent with High5’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 High5 immediately if you become aware of any unauthorized access or use of your username, password, or other security information.

High5 reserves the right to prevent access to the Site and the Service by any unauthorized user, or any user who High5 has reason to believe is in breach of this TOS.

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 High5, 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 High5.

Without limiting the foregoing paragraph, the name High5, the High5 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 High5 or its licensors. You must not use any Marks for any purpose without prior written permission from High5 or its applicable licensor.

User Content.

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

High5 is under no obligation to review any User Content and assumes no responsibility or liability relating to any User Content. High5 may block, reject, and/or remove any User Content at any time.

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 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 High5, 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 High5 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) High5’s internal business purposes, including without limitation analyzing usage of and improving its Site and Service.

Monitoring and Enforcement; Termination.

You understand and acknowledge that High5 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 High5 deems necessary or appropriate in its sole discretion, including if High5 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 High5 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 High5.
• Without limiting the foregoing, High5 has the right to cooperate with any law enforcement authorities or court order requesting or directing High5 to disclose the identity or other information of anyone posting any materials on or through the Site or the Service.

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

• your computer or device may temporarily store copies of such materials in memory incidental to your accessing, viewing or posting such materials,
• you may store files that are automatically cached by your browser for display purposes,
• if High5 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
• if High5 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 High5 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 High5’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 High5 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 High5, a High5 employee, another user or any other person or entity, or create any impression of endorsement by High5, 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 High5, may harm High5 or other users of the Site or the Service.
• Use the Site or the Service in any manner that, in High5’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.

Disclaimer of Warranties; Limitation of Liability.

HIGH5 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 HIGH5 NOR ANY PERSON ASSOCIATED WITH HIGH5 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 HIGH5 NOR ANYONE ASSOCIATED WITH HIGH5 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.

HIGH5 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.

EXCEPT AS EXPRESSLY SET FORTH IN YOUR ORGANIZATION’S CUSTOMER AGREEMENT, IF ANY, AND TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL HIGH5, 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 HIGH5 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HIGH5’S LIABILITY FOR DIRECT DAMAGES, IF ANY, SHALL IN THE AGGREGATE BE LIMITED TO THE AMOUNTS PAID BY YOU TO HIGH5 IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO SUCH LIABILITY.

Indemnity.

You agree to defend, indemnify and hold harmless High5 (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 High5.

Electronic Communication.

You consent to receive communications electronically from High5 and its affiliates and partners. High5 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.

Links.

The Site or third parties may provide links to other Websites or resources. Because High5 has no control over such sites and resources, you acknowledge and agree that High5 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 High5 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.

Changes to this TOS.

High5 reserves the right to revise this TOS at any time and in High5’s sole discretion. High5 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.

Procedure for Claims of Copyright Infringement.

High5 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 High5’s Copyright Agent at support@letshigh5.com 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. High5’s agent for notice of claims of copyright or other intellectual property infringement can be reached as follows:

By email: support@letshigh5.com

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 High5 may offer special promotional offers which may or may not apply to your High5 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 High5 will be governed by the laws of the state of Delaware without regard to its conflict of law provisions. You and High5 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 High5 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 High5, this TOS constitutes the entire agreement between you and High5 with respect to the Site and the Service, superseding any prior understandings, representations, and agreements between you and High5 with respect to the Site and the Service.