This Customer Terms of Service (the “TOS”) is a contract between you (the “Customer”) and Brainyak, Inc. d/b/a GutCheck (“GutCheck”). It describes the Research Service GutCheck will provide to you, how we will work together, and other aspects of our business relationship. GutCheck periodically updates these terms and you can always find the latest version at http://www.gutcheckit.com/terms-of-service.

1.   DEFINITIONS

a.   “Acceptable Use” means the Acceptable Use policy located at www.gutcheckit.com/acceptable-use-policy.

b.   “Agreement” means these Customer Terms of Service, all materials referred or linked to in here, and, if applicable, Order Forms or Statement(s) of Work.

c.   “Customer Data” means all information, data, text, messages, sound, music, video, photographs, graphics, images and other materials that Customer or its designee may provide to GutCheck for use in performing the Research Services.

d.   “Customer Deliverables” means the executive summary and associated documents described in an Order Form or Statement of Work.

e.   “Customer Intellectual Property” means the Customer Data and trademarks, trade names, service marks, copyrights and other intellectual property owned by Customer.

f.    “Fees” or “Subscription Fees” means the charges for the annual subscription for Research Services fees or other Research Service fees as set forth in each Order Form or Statement of Work.

g.   “GutCheck Content” means all information, data, methodologies, text, messages, software, sound, music, video, photographs, graphics, images, development tools, know-how, processes or technologies and all modifications, enhancements, feedback, upgrades, updates and/or derivative works used or developed by GutCheck in performing the Research Services and/or developing any Customer Deliverables delivered to Customer.

h.   “Order Form” means the form executed by you and GutCheck by which you agree to purchase Research Services.

i.    “PII” means Personally Identifiable Information which, for GutCheck purposes, would include information like Respondent’s email address, age, gender, income, education, marital status and geographic location.

j.    “Recruiting Services” means online panels, online communities, e-mail lists and automation systems, and/or other recruiting facilities (such as Facebook) GutCheck uses to recruit Respondents (defined below).

k.   “Research Services” means the Research Service provided to you by GutCheck, which may include study design, guide development, programming, moderation, reporting, training services, integration or other services related to recruiting for and conducting a research study.

l.    “Respondent” means a single participant that completed a research study executed by GutCheck.

m.   “Respondent Credits” means the number of credits available for the purpose of recruiting Respondents into a research study.

n.   “Statement of Work” or “SOW” means each statement of work (and any exhibits attached thereto), setting forth the business terms for a particular offering of Research Services.  Each Statement of Work will reference this Agreement and if not attached to this Agreement will be signed by each Party.

o.   “Term” means the period of time during which this Agreement is in effect.

p.   “We”, “us” or “our” means GutCheck.

q.   “You”, “your” or “Customer” means the person or entity receiving the Research Service(s) and identified in the applicable billing statement, Order Form or Statement of Work as the customer.

2.   SERVICES

a.   GutCheck will provide the Research Services to Customer in accordance with the terms and conditions of this Agreement as the parties may from time to time agree and specify in an Order Form or Statement of Work executed by the parties.  Each Order Form or Statement of Work shall specify the scope of work to be performed by GutCheck in accordance with this Agreement in connection with a specific project (each a “Project”).  Each Order Form or Statement of Work shall specify, at a minimum: (i) the specific parameters of the Project, including the nature and extent of the Research Services and any and all Customer Deliverables; (ii) the performance obligations of GutCheck with respect to such Customer Deliverables under the Order Form or Statement of Work; (iii) the date or dates by which the performance obligations must be met; (iv) the total cost of the Project and, if applicable, an estimate for out-of-pocket expenses, including travel costs; and (v) any approval requirements and/or other Project limitations or restrictions.  Each Order Form or Statement of Work, in each case together with the terms and conditions of this Agreement, shall constitute and be construed as a separate agreement effective as of the Order Form or Statement of Work Effective Date.

b.   Any changes to an Order Form or Statement of Work can be made only by a written document containing such changes in detail (the “Change Order”) and signed by an authorized representative of each party.  Such executed Change Order shall amend and become part of the applicable Order Form or Statement of Work.

3.   FEES

a.  Subscription Fees. The subscription fee will remain fixed during the Term unless Customer (i) exceeds its Respondent Credits, (ii) changes products or Research Services, or (iii) subscribes to additional features or products, including additional Respondent Credits or Research Services.

b.  GutCheck shall submit an invoice to Customer for the Subscription Fee and/or any other Fees associated with the Research Service upon the execution of the applicable Order Form or Statement of Work.  Any terms and conditions included by Customer on any purchase orders will in no way apply to this Agreement and are null and void.

c.  All payments under this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies and similar assessments and Customer agrees to bear and be responsible for the payment of all such charges imposed upon the Research Service, excluding taxes based upon GutCheck’s net income.  All amounts due hereunder will be grossed-up for any withholding taxes imposed by any foreign government.

4.   TERM AND TERMINATION

a.   Term.  The Term of any Order Form or Statement of Work shall begin on the effective date of each Order Form or Statement of Work and shall expire at the end of the period as stated on the Order Form or Statement of Work unless sooner terminated as provided herein.

b. Termination for Cause. Either party may terminate this Agreement for cause upon written notice to the other party of a material breach if such breach remains uncured for thirty (30) days after such notification. This Agreement may not otherwise be terminated prior to the end of the Term.

d.   Termination for Non-Payment. GutCheck may terminate the Research Services upon ten (10) days’ written notice to Customer of non-payment of any amount past due. GutCheck will not terminate the Research Service while Customer is disputing the applicable charges reasonably and in good faith and if the parties are cooperating diligently to resolve the dispute.

e.  GutCheck may immediately terminate the Agreement and the Research Services upon Customer’s violation of the Acceptable Use Policy which is located at www.gutcheckit.com/acceptable-use-policy.

f.    Effect of Termination or Expiration. If Customer terminates this Agreement for cause, GutCheck will promptly refund any prepaid but unused fees through the date of termination. If GutCheck terminates this Agreement for cause, Customer will promptly pay all unpaid fees earned by GutCheck through the date of termination. Fees are otherwise non-refundable.

g.   In the event that either party terminates for default, in addition to all rights it has under this Agreement, the non-defaulting party shall have the right to exercise any and all remedies available at law or in equity.  All rights and remedies are cumulative and the election of one remedy shall not preclude another.  Notwithstanding the expiration or termination of this Agreement, the obligations intended to survive termination or expiration of this Agreement shall continue in full force and effect.

5.   CONFIDENTIAL INFORMATION

a.   The parties acknowledge that the Confidential Information (as hereinafter defined) relating to the business of the other party, which a party has obtained or will obtain during the course of its relationship with each other is the property of the disclosing party.  Except in the performance of its obligations under this Agreement, neither party shall disclose or use at any time, either during or after Customer’s engagement of GutCheck, or at any other time, any Confidential Information of the other party.  Upon the written request of a party, which request may be made at any time and from time to time, the other party shall either destroy and certify in writing the destruction of, or promptly provide to the requesting party all memoranda, notes, plans, records, documentation and other materials (and copies thereof) containing Confidential Information which it may possess or have under its control at the time of such request.

b.   “Confidential Information” shall mean proprietary information which is not generally known to the public and which is used, developed or obtained by a party, including but not limited to: products or services; fees, costs and pricing structure; designs; analyses; methodologies, processes, ideas, know-how, drawings; photographs; reports; computer software, including operating systems, object code, source code, application program listings, flow charts, manuals, and documentation; data bases; business and operating plans; accounting and business methods; budgets; inventions and new developments and methods, whether patentable or unpatentable, and whether or not reduced to practice; formulas; all copyrightable works; the customer of a party and such customer’s confidential information; all similar and related information in whatever form and information that, by its very nature, would be considered confidential.  Confidential Information shall not include any information which (i) either party independently knew or developed without use of or reference to the Confidential Information; (ii) either party lawfully obtained from a third party under no obligation of confidentiality; or (iii) is or becomes generally available to the public other than as a result of either party’s act or omission.

6.   PROPRIETARY RIGHTS

a.   Upon receipt of payment in full, GutCheck agrees that, except as provided below with regard to GutCheck Content, Customer shall own and retain all rights to the Customer Data and the Customer Deliverables.

b.   GutCheck agrees that, except as provided in paragraph 6(d) with regard to GutCheck Content, to the maximum extent permitted by law, all Customer Deliverables shall be deemed “Works Made for Hire”, as such phrase is defined under the U.S. Copyright Laws, for the benefit of Customer.  To the extent that any Customer Deliverable, by operation of law or under this Agreement, is not deemed “Works Made for Hire”, GutCheck shall and does hereby assign, convey and otherwise transfer to Customer all right, title and interest in and to all Customer Deliverables and any and all intellectual property rights inherent therein and appurtenant thereto, including without limitation any and all copyrights.

c.   GutCheck shall execute and acknowledge any and all documents that Customer, in its sole discretion, deems necessary to vest in Customer any and all of the rights, title and interest in and to all Customer Deliverables or to transfer, perfect, obtain, confirm and enforce any such rights, title and interest.  GutCheck agrees that the obligations state in this Section 6 shall continue beyond the termination of this Agreement.

d.   It is agreed and understood by Customer that GutCheck retains all right, title and interest in and to all GutCheck Content, as defined in this Agreement, used or developed by GutCheck in performing the Research Services and/or developing any Customer Deliverables.

e.   In the event any GutCheck Content is incorporated into or is required for the use of any Customer Deliverables, then GutCheck, subject to the term of this Agreement, agrees to and hereby does grant to Customer an irrevocable (except in the event of non-payment of Fees by Customer to GutCheck), non-exclusive, worldwide, royalty-free, fully paid up, right and license to use such GutCheck Content solely in connection with its internal business purposes.

f.    To the extent applicable, and only with respect to all Customer Deliverables for which Customer has paid GutCheck in full, GutCheck shall, and shall cause its subcontractors, if any, to execute any and all assignments and other instruments and/or documents that are reasonably necessary and proper to carry out the purposes of this Agreement and the applicable Order Form or Statement(s) of Work.

g.   As between GutCheck and Customer, any Customer Data and Customer Intellectual Property provided to GutCheck by Customer under this Agreement or otherwise shall at all times remain the property of Customer or its licensors, if any.

h.   Subject to the terms and conditions set forth in this Agreement, Customer grants GutCheck a limited, non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free license to reproduce, display and use the Customer Data solely to the extent necessary for GutCheck to perform its obligations under this Agreement and the applicable Order Form or Statement(s) of Work.  All rights not expressly granted herein are reserved to Customer or its licensors.

i.    If Customer Provides PII to GutCheck

If Customer provides GutCheck with personally identifiable information (“PII”) it has collected directly from individuals or from other sources about individuals, the following data usage terms apply.  Customer represents and warrants that Customer collected PII in compliance with applicable laws and has the authority to provide such PII to GutCheck, as contemplated by this Agreement.

Notwithstanding any provisions of this Agreement to the contrary, including but not limited to any limitation of liability, Customer hereby agrees to indemnify, defend and hold harmless GutCheck, its affiliates, officers, directors, employees and agents, from and against any and all third party claims, including any liabilities, obligations, losses, damages, costs, fees, penalties, fines, charges or other expenses of any kind (including, but not limited to, reasonable attorneys’ fees and legal costs) arising from any third party claims, including without limitation any litigation or threatened litigation, related to GutCheck’s possession or use of PII provided by Customer.

j.    GutCheck Data Usage Terms

Customer acknowledges that in performing the services contemplated by this Agreement, GutCheck may collect respondent identifiable information (“RII”) and collect, generate, or derive project related data including but not limited to demographic data, screening question responses, behavioral information, purchase information, study question responses, metadata, analyses, insights, and other information associated with this information (“Project Data”) and agrees that GutCheck may use RII or Project Data and derivative works and aggregations of the Project Data for its own purposes; provided that GutCheck shall at all times maintain the confidentiality and anonymity of Customer; and provided further that GutCheck may only distribute derivative works of the Project Data that have been de-identified and do not reveal RII, confidential information, or Customer identity.

k.   GutCheck acknowledges and agrees that all individuals who perform any part of the Research Services hereunder are (i) employees or contractors of GutCheck who are bound by confidentiality obligations that would prevent such employees from disclosing or using any Confidential Information other than in accordance with the terms of this Agreement and (b) include a full assignment to GutCheck or Customer of all rights necessary for Customer to obtain the rights set forth in Sections 6 a., 6 b. and 6 e. above.

7.   INJUNCTIVE RELIEF

Each party acknowledges that monetary damages may be an inadequate remedy in in the event of a breach by a party of its obligations under Sections 5 and 6 of this Agreement and that any such breach may cause irreparable injury and damage to the non-breaching party.  Accordingly, each party acknowledges that the other party shall be entitled, without waiving any additional rights or remedies otherwise available to it at law, in equity or by statute, to seek injunctive and other equitable relief in the event of a breach or intended or threatened breach by the other party of such obligations.

8.   INDEMNIFICATION; LIMITATION OF LIABILITY.

a.   Customer’s Indemnification.  Customer shall indemnify, defend and hold harmless GutCheck and its directors, officers, employees, agents, affiliates and subsidiaries against and from all losses, judgments, damages, claims, liabilities, costs or expenses (including, without limitation, reasonable attorneys’ fees and expenses) that may at any time be incurred by any of them in connection with any third party claim arising out of, alleging or claiming: (i) violation of the laws and/or regulations of any federal, state or other governmental body by Customer, its employees or agents; (ii) any amounts including taxes, interest and penalties assessed against GutCheck that are obligations of the Customer; (iii) bodily injury, death or real or tangible personal property damage (excluding software, data and related documentation) resulting from the Customer’s or its agents’ willful misconduct or gross negligence; (iv) the Customer’s failure to comply with any laws or regulations relating to the Service with which the Customer is required to comply; and (v) any alleged infringement, arising out of Customer’s use of the Service, of any U.S. patents of any third party, or any copyrights, trademarks, service marks, trade secrets or other similar proprietary rights of any third party enforceable in the U.S., and (vi) Customer’s breach of this Agreement.

b.   GutCheck’s Indemnification.  GutCheck shall indemnify, defend and hold harmless the Customer and its directors, officers, employees, agents, affiliates and subsidiaries against and from, all losses, judgments, damages, claims, liabilities, costs or expenses (including, without limitation, reasonable attorneys’ fees and expenses) that may at any time be incurred by any of them in connection with: (i) any third party claim arising out of GutCheck’s provision of the Service, other than those relating to (x) information provided to GutCheck by any person, including without limitation the Customer, or (y) action taken or not taken by GutCheck at the direction of any other person, including without limitation the Customer; (ii) any third party claim (other than one covered in 8.a above) that the use of the Service infringes upon any U.S. patents of any third party, or any copyrights, trademarks, service marks, trade secrets or other similar proprietary rights of any third party enforceable in the U.S.; (iii) a violation of the laws and/or regulations of any federal, state or other governmental body by GutCheck or its agents or subcontractors, or any of their employees or agents; (iv) any amounts including taxes, interest and penalties assessed against the Customer which are obligations of GutCheck hereunder; and (v) bodily injury, death or real or tangible personal property damage (excluding software, data and related documentation) resulting from GutCheck’s or its agents’ or subcontractors’ willful misconduct or gross negligence, and (vi) GutCheck’s breach of this Agreement.

c.   Limitations of Liability.  EXCEPT FOR DAMAGES ARISING OUT OF A PARTY’S GROSSLY NEGLIGENT OR INTENTIONAL DISCLOSURE OF CONFIDENTIAL INFORMATION IN VIOLATION OF CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT OR IN REGARDS TO ANY OBLIGATION OF INDEMNIFICATION SET FORTH IN SECTION 6 OF THIS AGREEMENT, SHALL IN NO EVENT EXCEED THE TOTAL FEES CAUSED TO BE PAID TO GUTCHECK BY THE CUSTOMER UNDER THE ORIGINAL TERM OF THIS AGREEMENT.  IN NO EVENT OR UNDER ANY CIRCUMSTANCE SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF PROFITS, OR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  FURTHERMORE, THE LIABILITY OF GUTCHECK FOR ANY CLAIMS BROUGHT UNDER THIS AGREEMENT, WHETHER ARISING OUT OF BREACH OF CONTRACT (INCLUDING BUT NOT LIMITED TO BREACH OF WARRANTY) OR TORT (INCLUDING BUT NOT LIMITED TO GROSS NEGLIGENCE AND STRICT LIABILITY), REGARDLESS OF NOTIFICATION OF THE POSSIBILITY OF SUCH DAMAGES SHALL BE LIMITED TO AMOUNTS PAID UNDER THIS AGREEMENT.  THIS LIMITATION OF LIABILITY IS NOT INTENDED TO, NOR SHALL IT OPERATE TO DIMINISH THE AMOUNT OF FEES CAUSED TO BE DUE AND PAYABLE BY THE CUSTOMER FOR SERVICES PERFORMED HEREUNDER.

9.   LIMITATION OF WARRANTY.

GUTCHECK EXPRESSLY DISCLAIMS, AND THE SUBSCRIBER HEREBY WAIVES, ALL REPRESENTATIONS, WARRANTIES AND GUARANTEES (OTHER THAN THE WARRANTIES SET FORTH IN THIS AGREEMENT), WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES OF NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR COURSE OF PERFORMANCE.

10.  MISCELLANEOUS.

a.   Assignment.  Neither this Agreement nor any right or obligation hereunder shall be assigned or delegated, in whole or part, by either party without the prior express written consent of the other which shall not be unreasonably withheld or delayed. Provided, however, that either party may, without the written consent of the other, assign this Agreement and its rights and delegate its obligations hereunder in connection with the transfer or sale of all or substantially all of its assets, or in the event of its merger, consolidation, change in control or similar transaction. Any permitted assignee shall assume all obligations of its assignor under this Agreement.  Any purported assignment in violation of this section shall be void and of no effect.

b.   Publicity.  GutCheck shall not refer to Customer, any of its brands, or as a reference without Customer’s prior written consent.

c.   Survival; Successors and Assigns. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the legal representatives, successors and assigns including change of ownership of such party to this Agreement.

d.   Governing Law.  This Agreement shall be governed and construed in accordance with the laws of the State of Colorado, excluding that State’s choice-of-law principles, and all claims relating to or arising out of this contract, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of the State of Colorado, excluding that State’s choice-of-law principles.

e.   Severability.  If any provision of this Agreement is held to be invalid, illegal or unenforceable, the remaining portions of this Agreement will not be affected or impaired thereby and will be binding upon the parties and will be enforceable as though the invalid provision were not contained in this Agreement.

f.    Force Majeure.  Neither party shall be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to a force majeure event or other circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, sabotage, embargo, strikes, lockouts, earthquake, fire, or flood.  If a force majeure event continues for more than ten (10) days, the non-affected party shall have the right to terminate this Agreement without further liability except for any undisputed, outstanding fees for the Research Services that were performed prior to the force majeure event.

g.   No Waiver of Rights.  Failure of either party at any time to require performance by the other party or to claim a breach of any term of this Agreement will not be construed as a waiver of any right under this Agreement.

h.   Entirety of Agreement.  This Agreement constitutes the binding agreement between the parties and contains their entire understanding.  Any representations not incorporated will not be binding.  This Agreement supersedes any existing agreements or arrangements between the parties.  No modification of this Agreement will be valid or binding, nor will any waiver of any term be deemed a waiver in the future, unless the modification or waiver is in writing signed by the parties.

i.    Order of Precedence.  In the event of a conflict between the terms of this Agreement, an Order Form or a Statement of Work, the terms of this Agreement shall govern and otherwise the order of precedence shall be the applicable Order Form or Statement of Work.

This Customer Terms of Service agreement was last updated on September 12, 2016.