TERMS OF USE

ANY PERSON OR ENTITY (“User”) ACCESSING THE BRAINYAK, INC.  WEB SITE, www.GutCheckIt.com, (the “Site” or “Service”) OR ANY OF THE INFORMATION CONTAINED HEREIN AGREES TO AND IS BOUND BY THE FOLLOWING TERMS AND CONDITIONS OF THIS BRAINYAK, INC. WEB SITE TERMS OF USE (“Agreement”):

This Agreement is a legal agreement between the User and BRAINYAK, INC. Corporation for the BRAINYAK, INC. Software Application Services you purchase. These Software Application Services include computer software, data storage mechanisms, databases and related designs, printed materials, and online or electronic documentation (Software Application Services, Application Services, or Software). By using the Software Application Services, you agree to be bound by the terms of this Terms of Use. If you do not agree to the terms of this Terms of Use, you are not authorized to use the Software Application Services.

Payment and Refund Policy

The User will be charged for one standard GutCheck chat under the following conditions AND the Respondent does NOT exit the chat interview:

1. The User ends the chat AND saves a GutCheck chat interview of any duration of time.

2. The User completes thirty (30) minutes of the chat interview.

The User will NOT BE Charged for one standard GutCheck chat interview under the following conditions:

1. The Respondent exits the chat interview, at any time during the interview, and the User chooses not to save the interview transcripts.

2. The chat interview is less than five (5) minutes in duration and the User does not save the interview.

3. The User chooses to ‘End Chat’ during any time the chat interview and does not Save the interview transcripts.

Situations that will incur additional charges, of which the user will be made aware of and have to accept in order to authorize the charge are:

1. Interview Time Extension – Adding additional time beyond the standard 30 minute GutCheck chat interview. This will be charged at a rate of $20 for an additional 15 minutes.

2. Additional Custom Questions – The standard GutCheck chat pricing includes the option to ask 1 custom question for use in setting up your recruitment criteria in the Recruitment Engine. To ask additional custom questions in the Recruitment Engine’s Advanced Custom Question screening you will be charged $5 per each additional custom question per chat interview.

If you are not completely satisfied with your experience, we’d like to hear about it, and we may provide a refund on your service subject to our discretion if it did not meet your expectations.  Please contact us at info@gutcheckit.com with the subject line “Refund Request”. You will need to provide us your name and contact information, the Project you setup in GutCheckIt.com and which chat you would like to have refunded. Please include a detailed description as to why you are unsatisfied with that chat. Alternatively you can call us with the same information as described above at 1-877-990-8111.

MEMBER ACCOUNT, PASSWORD AND SECURITY

You will receive a password and account designation upon completing the Service’s registration process. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify BRAINYAK, INC. and GutCheckIt.com of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. BRAINYAK, INC. and GutCheckIt.com cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.

MEMBER CONDUCT

You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you the User, and not BRAINYAK, INC. or GutCheckIt.com, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Service. BRAINYAK, INC. and GutCheckIt.com does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Service, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will BRAINYAK, INC. or GutCheckIt.com be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.

You agree to not use the Service to:

upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;

harm minors in any way;

impersonate any person or entity, including, but not limited to, a BRAINYAK, INC. or GutCheckIt.com official, or falsely state or otherwise misrepresent your affiliation with a person or entity;

upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);

upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights (“Rights”) of any party;

upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;

interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;

intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;

Violation of any of the items in this Section relieves BRAINYAK, INC. and GutCheckIt.com of any of its contractual or other legal obligations to User, including BRAINYAK, INC.’s obligations under its Privacy Policy.

BRAINYAK, INC. reserves the right to refuse any or all Service to any User for any reason, at any time, at BRAINYAK, INC.’s sole discretion. User agrees that BRAINYAK, INC. may block its IP address or addresses at any time, and at BRAINYAK, INC.’s sole discretion, thereby disallowing User’s continued use of BRAINYAK, INC.’s web site(s).

The BRAINYAK, INC. software application provides a “report abuse” button on the respondent side. When a report abuse flag is raised, BRAINYAK, INC and it’s web site(s) and software service reserve the right to shut down the reported account and conduct an investigation into the claim for Terms of Use violations as defined above.

COMPLIANCE WITH AGREEMENT AND LAWS

You shall use the interview tool only in compliance with this Terms of Use and all applicable U.S., state, local, and international laws (including, but not limited to, policies and laws related to spamming, copyright and trademark infringement, defamation, privacy, obscenity, and child protective email address registry laws).

You also agree not to intentionally or unintentionally violate any applicable local, state, national, or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange, or the NASDAQ, and any regulations having the force of law.

Although BRAINYAK, INC. and GutCheckIt.com has no obligation to review the content provided by you or your use of the interview tool, BRAINYAK, INC. may do so and may block any messages and or terminate any use of the interview tool that BRAINYAK, INC. believes may be (or is alleged to be) in violation of the foregoing.

MODIFICATIONS TO SERVICE

BRAINYAK, INC. and GutCheckIt.com reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that BRAINYAK, INC. shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

You agree that BRAINYAK, INC. has no responsibility or liability for the deletion or failure to store any GutCheck interview data or other Content maintained or transmitted by the Service. You acknowledge that BRAINYAK, INC. reserves the right to delete accounts that are inactive for an extended period of time. You further acknowledge that BRAINYAK, INC. reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.

COPYRIGHTS

The Software Application Services are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software Application Services are licensed, not sold.

All title and copyrights in and to the Software are owned by BRAINYAK, INC. or its suppliers. All title and intellectual property rights in and to the content which may be accessed through use of the Software Application Services is the property of the respective content owner and also may be protected by applicable copyright or other intellectual property laws and treaties.

LINKS TO THIRD PARTIES

BRAINYAK, INC. and GutCheckIt.com makes no claims or representations about any Web Site not under BRAINYAK, INC.’s control that a User may access from BRAINYAK, INC.’s web site– by link, frame, or any other means (“Linked Site”). Any link, frame, or any other means to access any Linked Site provided by BRAINYAK, INC. or otherwise on BRAINYAK, INC.’s web site does not constitute BRAINYAK, INC.’s endorsement, recommendation, or acceptance of any responsibility for the content of that Linked Site or the operators of that Linked Site.

LIABILITY DISCLAIMER

THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE BRAINYAK SITES/SERVICES MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY MADE TO THE BRAINYAK SITES/SERVICES AND TO THE INFORMATION THEREIN. BRAINYAK, INC. AND/OR ITS RESPECTIVE SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN BRAINYAK SITES/SERVICES AT ANY TIME.

BRAINYAK, INC. AND/OR ITS RESPECTIVE SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, LACK OF VIRUSES OR OTHER HARMFUL COMPONENTS AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED WITHIN THE BRAINYAK SITES/SERVICES FOR ANY PURPOSE. ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. BRAINYAK AND/OR ITS RESPECTIVE SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, TITLE AND NON-INFRINGEMENT.

YOU SPECIFICALLY AGREE THAT BRAINYAK SHALL NOT BE RESPONSIBLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, OR ANY TRANSACTIONS ENTERED INTO THROUGH A BRAINYAK SITE/SERVICE. YOU SPECIFICALLY AGREE THAT BRAINYAK, INC. IS NOT RESPONSIBLE OR LIABLE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OF ANY OTHER PARTY OR ANY INFRINGEMENT OF ANOTHER’S RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS. YOU SPECIFICALLY AGREE THAT BRAINYAK, INC. IS NOT RESPONSIBLE FOR ANY CONTENT SENT USING AND/OR INCLUDED IN A BRAINYAK SITE/SERVICE BY ANY THIRD PARTY.

IN NO EVENT SHALL BRAINYAK AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE BRAINYAK SITES/SERVICES, WITH THE DELAY OR INABILITY TO USE THE BRAINYAK SITES/SERVICES OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE BRAINYAK SITES/SERVICES, OR OTHERWISE ARISING OUT OF THE USE OF THE BRAINYAK, INC. SITES/SERVICES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF BRAINYAK OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE BRAINYAK SITES/SERVICES, OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE BRAINYAK SITES/SERVICES.

If for any reason a court of competent jurisdiction finds any provision or portion of the Terms of Use to be unenforceable, the remainder of the Terms of Use will continue in full force and effect.

These Terms of Use constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of the Terms of Use will be effective only if in writing and signed by BRAINYAK, INC.