Acceptable Use Policy

This Acceptable Use Policy (“AUP”) is posted by BRAINYAK, Inc., doing business as GutCheck (“Gutcheck,” “we,” “our,” or “us”), and establishes certain terms, rules and requirements pertaining to your use of www.gutcheckit.com or any other site, app or portal that links to this AUP (collectively the “Site”), as well as any GutCheck survey or research study, whether hosted online or offline (collectively, including the Site, the “Services). 

This AUP also includes any other legal terms related to the Site or your participation in research which are presented to you directly, including without limitation any terms and conditions related to your submission of photos or videos, or your participation in any in-home usage study.

PLEASE READ THIS AUP CAREFULLY. By using or accessing the Site OR THE SERVICES or otherwise accepting this AUP, you agree to the terms and conditions of this AUP.

1. Use.

You may use the Site solely for its lawful, intended purpose.  You may not reproduce, create derivative works of, distribute, publicly perform or publicly display the Site, any portion thereof or any content made available on the Site without GutCheck’s prior written consent.

2. Prohibited and Unauthorized Uses.

We grant you a personal, limited, revocable, non-transferable, non-exclusive license to access and use the Site and other Services in accordance with this AUP any separate commercial arrangement we make with you.

You may not use the Site or other Services in any manner in violation of any applicable law or regulation. You may not use the Site or other Services for purposes of competing with GutCheck in any way or in a manner that may interfere with GutCheck’s ability to provide the Site or other Services to other users. 

Without limiting the foregoing, you agree you will not use the Site or other Services to do any of the following:

• collect any personal information of any other person;
• use spiders, robots, or other automated techniques to catalog, download, store, or otherwise reproduce or distribute data or content made available to you;
• take any action to interfere with the Site or our research;
• send or transmit any viruses, corrupted data, or any other harmful, disruptive, or destructive code, file, or information, including without limitation any spyware;
• send unsolicited emails, including without limitation promotions or advertising of products or services;
• post or transmit any threatening, libelous, defamatory, obscene, lewd, scandalous, or inflammatory material or content or any material or content that could otherwise violate applicable laws;
• impersonate any person or entity, misrepresent your affiliation with a person or entity, or in any way forge or mask your true identity;
• reverse engineer any aspect of the Site or a research study or take any act that might reveal or disclose any source code, or bypass or circumvent measurers or controls utilized to prohibit, restrict or limit access to any webpage, content or code;
• engage in any criminal or illegal acts or in any activities that may violate a third party’s privacy or publicity rights; or
• encourage and/or advise any individual to commit any act prohibited by this AUP.

3. Not for Use by Children.

The Site and other Services are not intended for use by children under the age of sixteen (16). By using the Site or participating in research, you promise to GutCheck that you are at least sixteen (16) years old.

4. Data Collection and Privacy.

You may provide certain data to GutCheck, such as your email address, name, employer and country of residence, in connection with your use of the Site or other Services.  By using the Site or other Services, you agree to GutCheck’s collection of information as described in GutCheck’s Privacy Policy located at www.gutcheckit.com/privacy-policy and incorporated herein by this reference.  You agree that you will not upload any of the following types of information: (a) personal health information, (b) driver’s license numbers, (c) passport numbers, (d) social security, tax ID or similar numbers, or (e) bank, checking, credit card, debit card, or other financial account numbers.   

5. Third-Party Sites, Content and Products

Our Site may provide links to third-party sites and access to third-party content, products and services. You agree that we are not responsible for such third-party sites, content, products and/or services. You should refer to the applicable policies of those third parties, which may set forth your rights, obligations and relationship with respect to those third parties. 

6. Your Responsibilities and GutCheck’s Rights.

You agree to cooperate with GutCheck and appropriate law enforcement and other governmental agencies and other parties involved in investigating claims of illegal or inappropriate activity in connection with your use of the Site or other Services.  If you become aware of any violation of this AUP by any person, you agree to notify GutCheck immediately at [email protected].  You agree to indemnify GutCheck against any costs, claims, losses and damages (including legal fees) incurred by or awarded against GutCheck as a result of your misuse of the Site or other Services or your breach of this AUP.  You agree that GutCheck may, in its sole discretion, at any time and for any reason, suspend or terminate your access to the Site or other Services. 

7. Ownership

The content on the Site is the property of GutCheck, or its licensors, and is protected by copyright and other intellectual property laws. All trade names, trademarks, service marks and other product and service names and logos on this Site are proprietary to their respective owners and are protected by applicable laws. Any of the trademarks, service marks or logos (collectively, the “Marks”) displayed on the Site may be registered or unregistered marks of GutCheck or others. Nothing contained on this Site should be construed as granting any license or right to use any of the Marks displayed on the Site without GutCheck’s prior written consent. Any unauthorized uses of the Marks or any other content are strictly prohibited.

You acknowledge and agree the content, materials, text, images, videos, graphics, trademarks, logos, button icons, music, software, and other elements available to you in connection with research are the property of GutCheck, our licensors, or our clients, and are protected by copyright, trademark, and/or other proprietary rights and laws. You agree not to sell, license, rent, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, modify, or create derivative works from any content or materials made available to you in connection with research.

Information and content made available to you in connection with research may contain trade secrets or other confidential or proprietary information of GutCheck or our clients, suppliers, or licensors. You must hold in strict confidence, and not disclose to any other person, any information or content you access or learn in connection with your participation research. You are prohibited from sharing with any third party photographic or other imagery, information, or any other content from your activities. You must not use any such information or content for any purpose other than your participation in research in accordance with this AUP.

You hereby agree to notify us immediately if you learn of or suspect any use or disclosure of, or access to, any such information or content other than as specifically authorized in this AUP.

You also acknowledge and agree that any content and materials you provide to GutCheck and/or our clients, including without limitation in connection with any survey or research study responses, remain your sole property; provided, however, that you also grant to GutCheck and its clients and other partners a worldwide, non-exclusive, perpetual, royalty-free, sublicenseable right and license to host, reproduce, distribute, communicate, use, publish, publicly perform, publicly display, modify, and create derivative works of such content and materials.

8. Limitation of Liability and Disclaimer of Warranties

GutCheck makes no warranties or representations as to the accuracy of information provided by the Site and assumes no liability or responsibility for any errors or omissions in the content of the Site. All content and materials are provided “as is,” and your use of the Site or other Services is entirely at your risk.

Except to the extent prohibited or limited by applicable law, you acknowledge and agree that in no event shall GutCheck or its clients or licensors be liable for any consequential, direct, incidental, indirect, punitive, or special damages, or otherwise for any damages arising out of, or in any way connected with: (1) your participation in research; (2) the unauthorized access to or alteration of your transmissions or data; or (3) any matter related to these terms, regardless of whether such damages are based on contract, strict liability, tort, or other theories of liability, and also regardless of whether GutCheck was given actual or constructive notice that damages were possible. Except to the extent prohibited or limited by applicable law, in the event GutCheck or any of its clients or licensors bears liability to a research respondent for damages, losses, and causes of action, the liability will be limited to the maximum amount paid to you for your participation in research in the twelve (12) months prior to the events giving rise to the alleged liability or one hundred and fifty dollars ($150), whichever is greater.

9. Applicable Law and Severability

You agree that this AUP and your use of the Site and other Services shall be governed by and construed in accordance with the laws of Colorado without giving effect to any principles or conflicts of law. If any provision of this AUP is deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this AUP and shall not affect the validity and enforceability of any remaining provisions.

10. Indemnification

You agree to indemnify, defend, and hold harmless GutCheck and its affiliates, as well as their directors, officers, employees, agents, successors and assigns, from and against all liabilities, losses, damages and costs, including reasonable attorneys’ fees, they may suffer as the result of third-party claims, demands, actions, suits or judgments against them resulting from or arising out of: (a) your violation of this AUP or applicable laws or regulations; or (b) your negligence or willful misconduct.

11. Arbitration

Unless prohibited or restricted by law as against public policy, any claim or dispute relating in any way to your participation in research or these terms shall be submitted to arbitration. Arbitration would remove your right to litigate a claim in court or to have a jury trial on that claim. Other rights that you would have in court, including discovery and rights to appeal, are generally more limited in arbitration than in a lawsuit, and other rights available in court may not be available in arbitration.

All disputes between you and GutCheck, including disputes related to these terms, your participation in research, or your rights of privacy or publicity, will be resolved by binding, individual, confidential arbitration before one arbitrator in Denver, Colorado. The arbitration shall be administered by JAMS pursuant to its comprehensive arbitration rules and procedures. You and GutCheck hereby expressly waive trial by jury. Notwithstanding the foregoing, GutCheck and/or its clients and licensors may seek interim relief from any state or federal court in the party’s state of residence to protect such party’s intellectual property rights.

This dispute resolution provision will be governed by the Federal Arbitration Act. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. In any arbitration, provided your claim is $10,000 or less, GutCheck will pay the filing, administration, service or case management fee, plus the costs associated with the first day of arbitration, unless your claim is found by the arbitrator to have been frivolous or brought for an improper purpose, in which case you agree to reimburse GutCheck for such fees and costs. All remaining costs shall be paid by the non-prevailing party. Unless inconsistent with applicable law, each party shall bear the expense of their respective attorneys’, experts’ and witness fees, regardless of which party prevails in the arbitration.

12. Class Action Waiver

Unless restricted or prohibited by law as against public policy, any action under or relating to THIS AUP or your participation in research, whether before a judge or jury or pursuant to judicial reference, will take place on an individual basis, without resort to any form of class or representative action (“Class Action Waiver”). This Class Action Waiver precludes any party from participating in or being represented in any class or representative action regarding a claim under this aup. Regardless of anything else herein, the validity and effect of the class action waiver may be determined only by a court.

13. Changes

GutCheck hereby reserves the right, in GutCheck’s sole discretion, to make changes to this AUP. Such changes will become effective upon their posting. Accordingly, GutCheck encourages you to review this AUP on an ongoing basis.

This AUP was last updated on September 1, 2021.