Terms of Service
These Terms of Service (the “TOS”), together with any agreement between you (the “Client” or “you”) and Brainyak, Inc. d/b/a GutCheck (“GutCheck”) that incorporates and/or otherwise references the TOS constitute the “Agreement” between you and GutCheck (each a “party” and collectively, the “parties”). GutCheck may periodically update these terms and you can always find the latest version at https://gutcheck.wpengine.com/terms-of-service.
- “Client Deliverables” means the deliverables expressly identified in an applicable SOW or Proposal describing the scope of Research Services to be provided by GutCheck to Client.
- “Client Materials” means all information and other materials that Client owns or licenses and provides and/or makes available to GutCheck for use in performing the Research Services.
- “Credit” is the unit of value purchased in connection with Subscriptions. Each Subscription will include a discrete, identified number of Credits that may be used to purchase Research Services.
- “Fees” means the fees for Research Services.
- “GutCheck Materials” means all information (other than Client Materials), materials, 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 or developing any Client Deliverables.
- “PII” means personally identifiable information which may include a Respondent’s email address, full name or any other information or combination of information that is considered by an applicable law or regulatory authority to be personally identifiable information (or a substantially equivalent concept).
- “Primary Data” means the data that GutCheck obtains from respondents in connection with the Research Services.
- “Proposal” means a project-specific agreement which describes the work to be performed, designating parameters, objectives, pricing and estimated timing for each project. Proposals may be accepted via email or by Client’s signature. Proposals that are performed pursuant to a Subscription will set forth the applicable number of Credits to be used for the Proposal.
- “Questionnaire” means the questions used in connection with a survey, including, without limitation, the questions, the order of the questions and any document including the foregoing.
- “Research Services” means the research services provided to you by GutCheck as described in an applicable SOW or Proposal.
- “Respondent” means a single participant that completed a research study executed by GutCheck.
- “Statement of Work” or “SOW” means each statement of work, work order or similar agreement (and any exhibits attached thereto), setting forth the business terms for a particular offering of Research Services or a Subscription. Each Statement of Work will reference this Agreement and will be signed by each party.
- GutCheck will provide the Research Services to Client in accordance with the terms and conditions of this Agreement. Each SOW or Proposal for Research Services shall specify the scope of work to be performed by GutCheck.
- Any changes to the scope of Research Services set forth in an SOW or Proposal shall be made in writing. Written change requests may be made and accepted via email. If a change increases the scope of Research Services, GutCheck may charge Client a reasonable amount of additional Fees for such change.
- Platform Use
- Subject to the terms of this Agreement, GutCheck grants Client a non-exclusive, non-transferable right to use and access during the Term GutCheck’s web-based platform (the “Platform”) in connection with the Research Services. Such access and use is subject to GutCheck’s policies, including its then-applicable Acceptable Use Policy which may be accessed here. GutCheck reserves the right to suspend or terminate Client’s access to the Platform if, in its reasonable discretion, it believes Client has violated any applicable policy in a manner that could harm GutCheck or any of its other Clients.
- GutCheck will provision user ID’s to access the Platform to Client’s employees upon Client’s reasonable request. Client shall be responsible for ensuring that such user ID’s shall only be accessed and used by individually named users and shall be fully responsible for the use of such User ID’s.
- Client shall promptly notify GutCheck if it becomes aware of any unauthorized access to, use of or copying of the Platform.
- To the extent Client is provided with the ability to provision user ID’s to access the Platform, it agrees to do so in accordance with the terms of this Agreement and shall be fully responsible for the use of such user ID’s.
- Client shall be fully responsible for informing GutCheck in writing if any previously provisioned user ID should no longer have access to the Platform.
- Fees, Taxes and Invoicing
- Fees shall be set forth in the applicable SOW or Proposal and, unless otherwise set forth in the applicable SOW or Proposal, are exclusive of any applicable taxes.
- GutCheck may invoice Client immediately upon execution of the applicable SOW or Client’s agreement to the applicable Proposal (the “Effective Date”) and payment shall be due within thirty (30) days of Client’s receipt of the applicable invoice. If Client’s payment system requires the issues of a purchase order as a precedent to invoicing or payment of an invoice, Client shall promptly issue such purchase order. Notwithstanding anything to the contrary in any Agreement, GutCheck shall not be required to provide any Client Deliverables to Client if it has not received a required purchase order.
- All payments under this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies and similar assessments and Client 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 are net of withholding taxes and will be grossed-up for any withholding taxes imposed by any foreign government.
- All Fees are non-refundable unless otherwise set forth herein.
- Client may purchase a Subscription that provides a pre-determined number of Credits that may be used to purchase Research Services during the period of time identified in the applicable SOW (the “Subscription Term”).
- Credits are non-refundable and, unless otherwise agreed upon in a writing executed by both parties, Credits that are unused expire at the end of the applicable Subscription Term.
- For the avoidance of doubt, Client’s agreement to proceed with any Research Services, whether verbally, by email or in writing, shall constitute a binding agreement to use the applicable number of Credits for such Research Services under Client’s then-applicable Subscription.
- Term and Termination
- The “Term” means the period of time during which this Agreement is in effect, which may be set forth in an SOW or Proposal. If this Agreement does not have an express Term, the Term shall extend from the effective date of the applicable SOW or Proposal until the later of GutCheck’s completion of any obligation to provide Research Services and Client’s fulfillment of all payment obligations. Notwithstanding anything to the contrary in the foregoing, the Term may be sooner terminated as set forth below.
- 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 receipt of such notification.
- Suspension for Non-Payment. GutCheck may suspend provision of Research Services and withhold any deliverables upon Client’s non-payment of any amount past due.
- Stalled or Abandoned Projects. If the agreed upon Research Services are not actively progressing as determined in GutCheck’s reasonable discretion, such failure to progress is due to Client’s failure to move the Research Services forward as determined in GutCheck’s reasonable discretion and more than ninety (90) days have passed since Client accepted the applicable Proposal, GutCheck shall be deemed for all purpose to have completed any obligation to provide such Research Services and shall be entitled to any applicable Fees.
- Effect of Termination or Expiration. If Client terminates this Agreement for cause, GutCheck will promptly refund any Fees paid for Research Services that were not performed, including pro rata Fees for unused Credits purchased through a Subscription, through the date of termination and Client will promptly pay all unpaid Fees for Research Services performed through the date of termination, which shall not include amounts for unused Credits under a Subscription. If GutCheck terminates this Agreement for cause, Client will promptly pay all unpaid Fees for Research Services performed through the date of termination, which shall include all amounts for any applicable Subscriptions, whether or not Credits for such Subscriptions were used.
- In the event that either party terminates for default or material breach, 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.
- Survival. The termination or expiration of this agreement will not affect the coming into force or continuation in force of any of its provisions that are expressly or by implication are intended to continue to apply after termination or expiration. Without limitation, all payment obligations shall survive termination or expiration of this Agreement.
- “Confidential Information” means any information, technical data, or know-how disclosed by a disclosing party to a receiving party, either directly or indirectly in any form whatsoever (including, but not limited to, in writing, in machine readable or other tangible form, orally or visually); (i) that has been marked as confidential; (ii) whose confidential nature has been made known by the disclosing party, in writing or orally; or (iii) that due to its character, nature, or method of transmittal, a reasonable person under like circumstances would treat as confidential.
- Except in the performance of its obligations under this Agreement or as otherwise agreed upon by the parties, neither party shall disclose to a third party at any time, either during or after Client’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 destroy and certify in writing the destruction of the requesting party’s Confidential Information in its possession. Notwithstanding anything to the contrary in the foregoing, the parties shall not be obligated to destroy backup copies that are made in the ordinary course of such party’s system backup processes, Primary Data (or copies thereof) or Questionnaires (or copies thereof), provided that all confidentiality obligations set forth herein shall continue to apply to such information.
- Confidential Information shall not include any information which (i) was available to the public prior to the time of disclosure by the disclosing party; (ii) becomes available to the public after disclosure by the disclosing party to the receiving party through no act or omission of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s written records prior to the time of disclosure; (iv) is obtained by the receiving party from a third party who has the legal right to disclose such information; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
- Proprietary Rights and Intellectual Property
- Client shall own the Client Deliverables upon payment of all applicable Fees for Research Services to GutCheck, provided that such ownership shall not include any rights to GutCheck Materials or Primary Data other than those set forth below.
- GutCheck agrees that Client Materials are a valuable asset of Client and any third parties from which Client derives rights to the Client Materials and that GutCheck obtains no proprietary interests therein other than rights expressly granted to GutCheck herein. All other rights in the Client Materials shall remain with Client and/or the applicable owners.
- Subject to the terms and conditions set forth in this Agreement, Client grants GutCheck a limited, non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free license to reproduce, display and use Client Materials solely to the extent necessary for GutCheck to perform its obligations under this Agreement and the applicable SOW or Proposal.
- Client agrees that GutCheck Materials are a valuable asset of GutCheck and any third parties from which GutCheck derives rights to the GutCheck Materials and that Client obtains no proprietary interests therein other than rights expressly granted to Client herein. All other rights in the GutCheck Materials shall remain with GutCheck and/or the applicable owners.
- Client agrees that GutCheck shall be the owner of all Primary Data collected in connection with the Research Services. All derivative works produced from the Primary Data by GutCheck are the property of GutCheck. If GutCheck provides a copy of Primary Data as a Client Deliverable, such copy may be used without limitation by Client, provided that GutCheck reserves the right to not provide any respondent PII in such copy. For the avoidance of doubt, all obligations with respect to Client’s Confidential Information shall continue to apply with respect to GutCheck’s use of Primary Data.
- Client agrees that GutCheck shall be the owner of all Questionnaires developed in connection with the Research Services. All derivative works produced from Questionnaires by GutCheck are the property of GutCheck. If a Questionnaire is identified as a Client Deliverable in a Proposal or SOW, Client shall receive a copy of the Questionnaire that may be used without limitation by Client, provided that, GutCheck’s shall retain ownership rights to such Questionnaire. For the avoidance of doubt, all obligations with respect to Client’s Confidential Information shall continue to apply with respect to GutCheck’s use of Questionnaires.
- In the event any GutCheck Material is incorporated into or is required for the use of any Client Deliverables, then GutCheck, subject to the terms and conditions of this Agreement and upon payment of all applicable Fees by Client, agrees to and hereby does grant to Client a non-exclusive, worldwide, royalty-free license to use such GutCheck Materials solely in connection with Client’s use of the Client Deliverables.
- GutCheck may, in its sole discretion, use or incorporate into its products and services any suggestions, ideas, enhancement requests, feedback or recommendations provided by Client to GutCheck in connection with GutCheck products or services (“Client Feedback”), provided that such use is subject to all GutCheck obligations with respect to Client’s Confidential Information. For the avoidance of doubt, GutCheck shall not be obligated to provide any compensation to Client whatsoever for use of Client Feedback.
- Representations and Warranties
- Each party represents and warrants that it has the right and authority to enter into and perform its obligations under this Agreement and that it shall comply with all laws, regulations and other legal requirements that may apply to such party in connection with its role under this Agreement, including, without limitation privacy laws. Client further represents and warrants that if it provides GutCheck with a list of email addresses for recruitment of Respondents that it has obtained all necessary consents with respect to the use of such list and that the use of the list by GutCheck to recruit Respondents will not violate any law, regulation or third-party right.
- GutCheck represents that the Client Deliverables shall not infringe the intellectual property rights of any third party.
- Client represents that any Client Materials and GutCheck’s use of such Client Materials as contemplated by the Agreement shall not infringe the intellectual property rights of any third party.
- Indemnification and Limitation of Liability
- GutCheck shall indemnify, defend and hold harmless Client 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 against any of them based on : (i) GutCheck’s breach of the Agreement; (ii) infringement of any third party’s intellectual property rights by the Client Deliverables or use of the Platform provided that such claim is not based on Client Materials; or (iii) a violation of an applicable law and/or regulation by GutCheck or its agents or subcontractors, or any of their employees or agents (unless as a result of GutCheck’s authorized use of contact information provided by Client to GutCheck to recruit Respondents).
- Client 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 against any of them based on : (i) Client’s breach of the Agreement; (ii) infringement of any third party’s intellectual property rights by the Client Materials; (iii) a violation of an applicable law and/or regulation by Client or its agents or subcontractors, or any of their employees or agents; (iv) materials or services, or the use thereof, that are provided to a Respondent by or on behalf of Client in connection with an IHUT study or (v) GutCheck’s authorized use of any contact information provided by Client to GutCheck to recruit Respondents.
- The indemnification obligations set forth above are subject to the party requesting indemnification (the “Indemnified Party”); (i) promptly notifying the other party (the “Indemnifying Party”) of any claim or litigation that is subject to such indemnification obligation; (ii) not making any admission or statement or taking any action that will cause an increase to the Indemnified Party’s liability; and (iii) permitting the Indemnifying Party, at its election, to control the defense or settlement of any such claim or litigation, provided always that no settlement may be made by Indemnifying Party that involves an admission of liability on the part of the Indemnified Party without such Indemnified Party’s prior written consent, which shall not be unreasonably withheld or delayed. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any such claim or litigation through counsel of its own choosing and shall in any event cooperate reasonably with the Indemnifying Party in the defense of such claim or litigation.
- EXCEPT FOR ANY INDEMNIFICATION OBLIGATION SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL A PARTY’S LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL FEES CAUSED TO BE PAID OR PAYABLE TO GUTCHECK BY THE CLIENT UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE DATE THE RESPECTIVE CLAIM AROSE. 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. THIS LIMITATION OF LIABILITY IS NOT INTENDED TO, NOR SHALL IT OPERATE TO DIMINISH THE AMOUNT OF FEES DUE AND PAYABLE BY THE CLIENT FOR RESEARCH SERVICES.
- Disclaimer of Warranty
GUTCHECK EXPRESSLY DISCLAIMS, AND CLIENT 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 AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR COURSE OF PERFORMANCE. CLIENT ACKNOWLEDGES AND AGREES THAT IT HAS SELECTED THE RESEARCH SERVICES AND IS SOLELY RESPONSIBLE FOR ANY RESULTS OBTAINED FROM THE RESEARCH SERVICE AND HAS NOT AND SHALL NOT RELY UPON ANY REPRESENTATIONS OR WARRANTIES AS TO THE SUITABILITY OR UTILITY OF THE RESEARCH SERVICES TO MEET CLIENT’S NEEDS OR REQUIREMENTS. GUTCHECK DOES NOT REPRESENT OR WARRANT THAT THE RESEARCH SERVICES OR PLATFORM SHALL BE ERROR-FREE OR UNINTERRUPTED.
- Independent Contractor
GutCheck is an independent contractor and shall not be deemed to be an agent, employee, representative or servant of Client for any purpose whatsoever. GutCheck shall at all times retain exclusive liability for wages and employment-related obligations due its employees.
Neither this Agreement nor any right or obligation hereunder shall be assigned, in whole or part, by GutCheck without the prior express written consent of Client which shall not be unreasonably withheld or delayed. Provided, however, that GutCheck may, without the written consent of Client, assign this Agreement 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.
Unless Client has provided written notice to GutCheck indicating otherwise and subject to the confidentiality obligations set forth herein, GutCheck may publicly identify Client in its marketing materials or on its website as a GutCheck client, including without limitation by displaying Client’s name, logo, and/or other trademarks.
- 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
- Governing Law
This Agreement shall be governed and construed in accordance with the laws of the State of Colorado, excluding choice-of-law principles. All claims or disputes arising out of or in connection with this Agreement will be heard exclusively by any of the federal or state courts of competent jurisdiction located in Denver, Colorado.
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.
- 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 thirty (30) days, the non-affected party shall have the right to terminate this Agreement upon ten (10) days’ written notice without further liability except for any undisputed, outstanding Fees for the Research Services that were performed prior to the force majeure event.
- 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.
Notices under this Agreement shall be in writing and addressed to the relevant party via certified mail. Any notice to GutCheck shall be given to the address below and shall be promptly followed with an email notice to the email address below. Notice to Client shall be addressed to the address set forth in the applicable SOW or Proposal. If no address is set forth in such SOW or Proposal, notice via email to any employee of Client involved in the applicable SOW or Proposal shall be sufficient. Notices shall be deemed given upon the other party’s receipt.
3827 Lafayette Street
Denver, CO 80205-5092
Notice Email Address: [email protected]
- Entire Agreement
This Agreement constitutes the binding agreement between the parties and contains their entire understanding. Any representations not incorporated or set forth in this Agreement 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. In the event of a conflict or inconsistency between the TOS and any other document that comprises part of the Agreement, the TOS shall control unless the parties expressly agree to override the TOS in a writing signed by the parties. For the avoidance of doubt, any terms or conditions in a Client’s purchase order will be null and void and have no effect on the relationship of the parties or this Agreement.
This TOS was last updated on 9-15-2022.
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