Terms and Conditions of Commitment Contract

Terms and Conditions of Commitment Contract
This contract is between you ("Client") and stickK.com, LLC ("stickK").  stickK owns the website located at www.stickK.com (the website, any subdomain thereof, any goal-setting portal hosted by stickK, any mobile version thereof, or any software system designed to support or permit interaction with the website or its functionality over a network, the "Website").

The Parties hereby agree as follows:

1. THE COMMITMENT

1.1 The Commitment. Client promises that he or she will perform his or her commitment (the "Commitment") as specified on the page summarizing Client's commitment that is displayed on the Website when Client accepts the Commitment Contract (the "Commitment Summary Page"). The data used to generate the Commitment Summary Page will be uniquely identified and retained by stickK so that the Commitment Summary Page can be automatically generated in the future.
1.2 Risk of Failure to Keep Commitment. Client acknowledges that there exist circumstances within or beyond Client's control that may prevent Client from achieving the Commitment. Client and stickK agree that it is a basic assumption of the parties in making this contract that Client will bear the risk of any inability to achieve the Commitment. Client understands that Client is solely responsible for the identification and description of the Commitment as specified in the Commitment Summary Page and THAT CLIENT BEARS ALL RISK ASSOCIATED WITH SUCH COMMITMENT, including, but not limited to, Client's efforts to satisfy the Commitment and Client's ultimate Success or Failure in achieving the Commitment. In addition, Client understands that Client is solely responsible for any loss, damage, illness, injury or death to person or loss or damage to property related in any way to the Commitment or Client's efforts in connection with the Commitment.

2. CHILDREN UNDER AGE 18

2.1 Commitment Contracts may not be appropriate for children. Children under age 13 are prohibited from creating Commitment Contracts and CLIENT REPRESENTS AND WARRANTS THAT CLIENT IS NOT UNDER AGE 13. stickK recommends that children age 13 to 18 talk with their parents or guardians before creating a Commitment Contract. Individuals under age 18 are prohibited from creating Commitment Contracts with Commitment Stakes.

3. REFEREES

3.1 Applicability. The terms of this paragraph 3 apply if and only if a Referee is designated in the Commitment Summary Page or on the Commitment details page.
3.2 The Referee Report. Client agrees that reports from the Referee shall be binding as to (i) whether Client has adequately cooperated in the Referee's attempts to verify whether Client has kept the Commitment and (ii) whether Client has failed to keep the Commitment. Reports of Failure from either Client or the Referee will trigger the emails and charges described below in paragraphs 5 and 6. Client acknowledges that stickK has not endorsed or warranted, and has no duty to verify, the accuracy of the Referee's reports. Client also acknowledges that stickK does not verify the identity of anyone logging into the Referee's account and that stickK will accept any reports from the Referee's account as being from the Referee. Client and stickK agree that it is a basic assumption of the parties in making this contract that Client will bear the risk that the Referee reports to stickK might be inaccurate.
3.3 Relationship between Referee and parties to the Commitment Contract. The Referee is not a party to this contract. Client and Referee may agree to any procedure to be followed so that Referee may verify Client's progress towards his or her Commitment. Client agrees to cooperate with Referee to conduct any agreed verification procedure for Client's commitment. Client agrees that the Referee has sole discretion to determine whether Client has adequately cooperated. Client is free to enter into contracts with the Referee under which Client may compensate the Referee or a third-party for any verification procedure. Under no circumstances will stickK be obligated under this Agreement to compensate the Referee or a third-party for any verification procedure or agreement entered into between the Client and the Referee.

4. REPORTS

4.1 Filing Reports. Client promises that he or she will make all required reports to Client's account at the Website by the required date or dates specified in the Commitment Summary Page. Client acknowledges that there exist circumstances within or beyond Client's control that may prevent Client from making a required Report in a timely manner. These circumstances include (but are not limited to) the possibility that Client will not have access to the Internet. If stickK permits late filing of a report, Client agrees to follow any rules stickK adopts regarding such late filing. Client and stickK agree that it is a basic assumption of the parties in making this contract that Client will bear the risk of any inability to report.
4.2 Failure. Client shall be deemed to have failed in a reporting period (a "Failure") if, subject to any extension procedure stickK adopts in accordance with paragraph 4.1: (a) Client reports that Client has failed to achieve the Commitment; or (b) Referee reports that Client has failed to achieve the Commitment for that reporting period (even if Client reports Success); or (c) Client fails to make a required Report by the end of the second day (11:59 p.m. EST) following a required reporting day.
4.3 Success. Client shall be deemed to have succeeded in a reporting period (a "Success") if Client has not reported Failure, as defined in Paragraph 4.2.

5. EMAILING THIRD PARTIES

5.1 Client authorizes stickK to send emails to the Referee reporting Client's Success or Failure in (i) making mandated Reports, and (ii) keeping the Commitment. A Referee may opt out of receiving further emails.
5.2 If Client has designated one or more "Supporters," Client authorizes stickK to send emails to these people reporting Client's (i) Success or Failure, and (ii) filing of mandated Reports. Any Supporter may opt out of receiving further emails.

6. TERMS FOR FINANCIAL COMMITMENT CONTRACTS

6.1 Client understands that if, as described in the Commitment Summary Page, Client has elected an amount of money to be at risk in each reporting period in the event of Failure ("Commitment Stakes") then such Commitment Stakes are governed by this paragraph 6. Client further understands that Client is not entitled to any interest on any Commitment Stakes held by stickK pursuant to this paragraph 6.
6.2 Client Representations. Client represents that the total of all Commitment Stakes authorized by Client is less than 10 percent of Client's annual income.
6.3 Payment and Billing. If the Commitment has Commitment Stakes, then Client agrees to provide stickK with certain information, including without limitation, Client's full name, address, telephone number, credit card information, and bank account information. Client agrees to provide stickK with the foregoing information as well as any other mandatory information that is accurate, complete and current. stickK will maintain such information in secure, encrypted form and in accordance with any applicable laws.

Client shall be responsible for all charges incurred as a result of Client's Commitment, including any applicable taxes. If payment cannot be charged to Client's credit card or if a charge is refunded for any reason, including chargeback, stickK reserves the right to immediately and without notice, either suspend or terminate Client's access and account, thereby terminating all of stickK's obligations under this Agreement. Client is required to pay any amounts still owed to stickK at the time Client's account is suspended or terminated.
6.4 Payment Processing. If the Commitment has Commitment Stakes, then Client authorizes stickK to charge Client's credit card in one of two methods: (i) Pay-as-you go, and (ii) Prepayment.
6.4.1 Pay-as-you go. If Prepayment is not selected because that option is either not offered by stickK or not selected by Client, then Client authorizes stickK to charge Client's credit card only upon Failure; such charge shall equal the Commitment Stakes for that reporting period ("Forfeited Stakes"). Client understands that such a charge could occur in each and every reporting period.
6.4.2 Prepayment. This paragraph governs the treatment of Client's Prepayment if one is specified in the Commitment Summary Page. The Prepayment is the amount that Client authorizes stickK to charge Client's credit card to cover the Commitment Stakes of multiple reporting periods at the time of entering into the Commitment Contract. If Client reports Failure pursuant to paragraph 4, stickK will deduct from the Client's Prepayment the Commitment Stakes for that reporting period ("Deducted Stakes"). Client understands that such a deduction could occur in each and every reporting period.

stickK may return any remaining portion of the Prepayment (without interest) to Client at the end of the contract. The Prepayment is owned by stickK and stickK has at most a contingent, non-fiduciary duty to transfer amounts to the Client or to Designated Recipients pursuant to paragraph 6.5. If stickK deducts from the Client's Prepayment during the term of the Commitment Contract, Client authorizes stickK to charge Client's credit card or electronic payment system an amount sufficient to replenish the Prepayment to maintain a constant amount throughout the term of this Commitment Contract. If for any reason Client is more than 2 weeks late in replenishing the Prepayment under this paragraph, Client authorizes stickK to treat the remaining Prepayment as Deducted Stakes and agrees that the contractual obligations of both sides will come to an end. Client and stickK agree that it is a basic assumption of the parties in making this contract that Client will bear the risk of any inability to replenish the funds in a timely manner.
6.5 Transfers. Client agrees that stickK will transfer Forfeited Stakes and Deducted Stakes, less certain fees and transaction costs charged by stickK, as described in paragraph 6.5.4, ("Transferrable Stakes") to the third party friend/foe, charity or anti-charity, or other person or entity (including stickK itself), as identified in the Commitment Summary Page (or if updated with stickK customer service, the Client's Commitment details page) that Client has designated as the party or entity to receive a portion of the Client's Commitment Stakes ("Designated Recipient"), provided that the Designated Recipient may not be the Client and stickK may, in its sole discretion, cancel the Commitment Contract of Client if stickK determines that the Designated Recipient is the Client. The parties intend that neither stickK nor Client will take any charitable tax deduction for any contribution made to charity pursuant to this contract. stickK has no liability to Client or any Designated Recipient for any shortfall in the amount of funds made available by Client to stickK to pay the Designated Recipient.  Under no circumstances is stickK obligated to make transfers to third parties beyond the Transferrable Stakes.
6.5.1 Transfers when the Designated Recipient is a Friend/Foe. It is the responsibility of the Client or, if appropriate, the Designated Recipient to provide stickK with the correct information for transmitting Transferrable Stakes to a Designated Recipient and stickK shall have no obligation to verify such information. stickK's only obligation shall be to attempt to transmit Transferrable Stakes in accordance with transmission information provided to stickK by the Client or the Designated Recipient. If stickK is unable, after good faith efforts, to transmit Transferrable Stakes to the Designated Recipient within a period of 90 days following the completion of the Agreement, the Client authorizes stickK to contribute the Transferrable Stakes to a person or entity of stickK's choosing, including stickK itself.
6.5.2 Transfers when the Designated Recipient is a charity or anti-charity. stickK's only obligation shall be to attempt to transmit Transferrable Stakes in accordance with transmission information provided to stickK by the Designated Recipient. If stickK is unable, after good faith efforts, to transmit Transferrable Stakes to the Designated Recipient within a period of 90 days following the completion of the Agreement, the Client authorizes stickK to contribute the Transferrable Stakes to a person or entity of stickK's choosing, including stickK itself.  If a Designated Recipient is an anti-charity and rejects the Transferrable Stakes (or Transferrable Stakes associated with another user's commitment), then Client authorizes stickK to change the Designated Recipient to charity for reporting periods beginning after such rejection.
6.5.3 Timing of transfer to Designated Recipient. The actual distribution of Transferrable Stakes will occur, at stickK's sole discretion, either periodically during the term of the Commitment or upon such schedule as stickK may adopt.
6.5.4 Fees. In order to pay transaction costs and compensate stickK for its services under this Agreement, stickK charges the following Fees. Unless set forth otherwise in supplemental terms to this Commitment Contract, stickK's Fee, which is deducted from Forfeited Stakes and Deducted Stakes to calculate Transferrable Stakes, shall be: (a) for all Commitment Contracts for which the Designated Recipient is a friend or foe, the greater of $1.00 or the transaction costs actually incurred by stickK in such transactions; (b) for all Commitment Contracts for which the Designated Recipient is an anti-charity, 50% of all Forfeited Stakes and/or Deducted Stakes plus any electronic processing fees incurred by stickK; and (c) for all other contracts, 19.5% of all Forfeited Stakes and/or Deducted Stakes plus any electronic processing fees incurred by stickK. stickK pays all transaction costs; the Fees do not represent any additional cost to the Client.

7. TERMS FOR HEALTH AND FITNESS RELATED CONTRACTS

7.1 Client Representations. Client represents that Client has not been diagnosed with an active condition of anorexia or bulimia nervosa, respiratory disease, heart condition or any other condition that would make the Commitment unhealthful.
7.2 Health Disclaimer. stickK is not a medical organization. Nothing contained in this contract or on the Website should be construed as medical advice. The information and goal-tracking reports generated by stickK should not be interpreted as a substitute for physician consultation, evaluation, or treatment. Client acknowledges that stickK has no knowledge of Client's health condition and that Client alone is responsible for whether the Commitment poses any health or other risks to Client. Client is urged and advised to seek the advice of a physician before beginning any health or fitness contract. Health and fitness contracts are not intended for use by persons with an adverse health condition or who are pregnant. Pregnant women and individuals with adverse health conditions are specifically warned to seek professional medical advice prior to initiating any form of health or fitness Commitment.

8. WARRANTIES AND LIMITATION ON LIABILITY

8.1 This site and all materials contained on it are provided on an "AS IS" and "AS AVAILABLE" basis, without warranties of any kind, either express or implied.
8.2 IN NO EVENT WILL STICKK OR ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE EITHER IN CONTRACT, TORT, WARRANTY, STRICT LIABILITY, NEGLIGENCE OR UNDER ANY STATUTE, REGULATION OR ANY OTHER THEORY, TO CLIENT OR ANY THIRD PERSON FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM, OUT OF OR IN RELATION TO OR IN CONNECTION WITH THIS AGREEMENT OR CLIENT'S COMMITMENT, EVEN IF THE COMPANY IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Notwithstanding anything to the contrary contained herein, stickK's liability to Client for any cause whatsoever, and regardless of the form of the action, in no case will exceed the lesser of Client's Commitment Stakes for the specific Commitment at issue or $1,000. Client acknowledges that if no fees are paid by client to stickK for the service, Client shall be limited to injunctive relief only, unless otherwise permitted by law, and shall not be entitled to damages of any kind from stickK, regardless of the cause of action.

9. TERM AND TERMINATION

9.1 Term. This Agreement shall terminate upon Success or Failure in the final report as identified in the Commitment Summary Page.
9.2 Cancellation. Client agrees that this Commitment Contract may not be cancelled except as set forth in this Paragraph 9.2. This Commitment Contract may be cancelled by Client if and only if a licensed physician faxes a completed and signed copy of the stickK "Medical Excuse" form (which can be downloaded here) to the fax number indicated on the form. After stickK contacts the physician or otherwise verifies that Client's medical excuse form is genuine, all remaining obligations under this contract will end. Client also agrees stickK has the authority to cancel any contract that stickK, in its sole discretion, deems to be inappropriate, unhealthful, illegal, against public policy, or based on false information provided by the Client.
9.3 Refund Policy. stickK does not provide refunds of Forfeited Stakes except in one circumstance: (1) Client cancels the Commitment Contract pursuant to Paragraph 9.2, and (2) following stickK's receipt of such Medical Excuse form, Client has a Failure resulting in a charge to Client's credit card under Paragraph 6. In order to obtain a refund, Client must provide Client's correct e-mail address and mailing address to stickK. stickK will not be liable for any claims that a refund has been delayed if such delay was a result of an incorrect email address or mailing address provided by Client to stickK. The Client is responsible for providing a correct/working e-mail address. stickK reserves the right to modify this Refund Policy at its discretion, or against any Client it believes is abusing this policy.

10. ALTERNATIVE DISPUTE RESOLUTION CLAUSE

10.1 Client and the Company agree that all disputes, controversies or differences which may arise between the parties hereto, out of or in relation to or in connection with this Agreement ("Dispute(s)") shall be submitted first to non-binding mediation.  If the Dispute is not resolved through such mediation, then the Dispute shall be submitted for binding arbitration in Maryland in accordance with the Consumer Procedures and Rules of the American Arbitration Association.  Client understands and hereby agrees that Disputes shall be arbitrated on an individual basis and that there shall be no right or authority for any Dispute to be arbitrated on a class action basis or in any other representative capacity on behalf of other persons similarly situated.  In addition, Disputes brought to arbitration pursuant to these Terms and Conditions of Commitment Contract may not be joined or consolidated in arbitration with Disputes brought by or against any third party, unless agreed to in writing by all parties.  No arbitration result is to be given preclusive or precendential effect as to issues or claims in any Dispute with anyone who is not a party to the arbitration.  Costs of arbitration shall be borne equally by both parties and upon resolution by the arbitrator, the losing party shall reimburse the prevailing party.

11. CHOICE OF LAW AND MERGER CLAUSE

11.1 This Agreement shall be governed by the internal laws of the State of Maryland determined without reference to principles of conflicts of law.
11.2 This Agreement sets forth the complete understanding and agreement of the Parties with respect to the transactions contemplated by this Agreement and supersedes and merges all previous understandings and agreements, whether oral or written, between the Parties relating to these transactions. (except this agreement does not supersede the Terms of Use which is incorporated herein by reference).
11.3 Each Party acknowledges that, in agreeing to enter into this Agreement, it has not relied on any representation, warranty, collateral contract or other assurance (except those set out in this Agreement and any documents referred to in it) made by or on behalf of any other Party or any other person whatsoever before the execution of this Agreement. This Agreement may not be modified except by a writing subscribed to by authorized representatives of both parties.

12. CERTIFICATIONS, DISCLAIMERS, ACKNOWLEDGEMENTS

12.1 stickK warrants and affirms and Client acknowledges that:
12.1.1 stickK is not engaged in identifying Supporters or Referees and does not know their location,  
12.1.2 stickK is passively receiving the email address for Supporter(s) and the system will automatically send an email to that address.  At no point during this process does stickK have any knowledge of the location of the recipient or take any interest in directing the email towards a particular location.
12.2 No person (including any Designated Recipient or Referee), other than Client and stickK, shall have any rights under this Commitment Contract, it being the intent of the parties that there shall be no third party beneficiaries.
12.3 stickK is not a legal organization. Nothing contained in this contract or on the Website should be construed as legal advice. This contract is void where prohibited by law.
12.4 Client agrees that Client has not paid Forfeited Stakes for the purpose of, or in connection with, the sale, transfer, encumbering, or leasing of property (real or personal) or for any other purpose which would cause the Forfeited Stakes to be deemed an escrow arrangement. Client agrees that the Forfeited Stakes are the property of stickK and that stickK does not hold the Forfeited Stakes in an escrow or any fiduciary capacity.
12.5 Client certifies that Client has read and understands the above and agrees to the terms and conditions as signified by clicking the "I accept this Commitment Contract" icon at the bottom of Commitment Summary Page.
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