Terms and Conditions of a Supporter Contract
This contract is between you ("Supporter") and stickK.com, LLC ("stickK").
1.1 Support. Supporter understands that Supporter has been invited by someone (the “Client”) or that Supporter has elected, in Supporter’s sole discretion, to support the Client’s commitment (the “Commitment”) as specified on the page summarizing Client's commitment that is displayed on the stickK website when Client agrees to meet his or her Commitment (the "Commitment Summary Page"). Supporter acknowledges that the Commitment Summary Page together with any Supporter Stakes, defined below, has been displayed to Supporter (the “Supporter Summary Page”) and affirms that Supporter understands the details of the Commitment made by the Client as displayed therein. The data used to generate the Supporter Summary Page will be uniquely identified and retained by stickK so that the Supporter Summary Page can be automatically generated in the future.
1.2 Supporter Stakes. Provided Supporter is not prohibited from doing so by the terms of this Agreement, Supporter agrees to comply with the terms of Paragraph 4 which describe the details of the financial support that Supporter has agreed to pay to encourage Client’s satisfaction of Client’s Commitment.
1.3 Setting the Commitment. Supporter understands that Client is solely responsible for the identification and description of the Commitment as specified in the Supporter Summary Page and THAT SUPPORTER BEARS ALL RISK ASSOCIATED WITH BEING A SUPPORTER OF SUCH COMMITMENT.
1.4 Email. Supporter authorizes stickK to send Supporters emails reporting Client's Success or Failure in (i) making mandated Reports (defined in Paragraph 3.1), and (ii) keeping the Commitment. Supporter understands that Supporter may opt out of receiving further emails.
1.5 Purpose. Supporter understands that the purpose of being a Supporter is to encourage the Client’s success in meeting Client’s Commitment.
2. CHILDREN UNDER AGE 18
2.1Support of Commitment Contracts is not appropriate for children. Support of Commitment Contracts is not appropriate for children. Children under age 13 are prohibited from creating Commitment Contracts and SUPPORTER REPRESENTS AND WARRANTS THAT SUPPORTER IS NOT UNDER AGE 13. stickK recommends that children age 13 to 18 talk with their parents or guardians before supporting a Commitment Contract. Individuals under age 18 are prohibited from having Supporter Stakes (defined below).
3.1 Filing Reports. Supporter understands that both the Client and the Referee, if Client has elected to have a Referee, will be solely responsible for making regular reports regarding the Client’s success or failure in keeping Client’s Commitment (each a “Report”). Supporter acknowledges that there exist circumstances within or beyond Client's and Referee’s control that may prevent Client or Referee from making a required Report in a timely manner. These circumstances include (but are not limited to) the possibility that Client or Referee will not have access to the Internet.
3.2 Failure. Client shall be deemed to have failed in a reporting period (a "Failure") if: (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.
3.3 Success. Client shall be deemed to have succeeded in a reporting period (a "Success") if the reporting period is not deemed a Failure, as defined in Paragraph 3.2.
3.4 Effect of Report. Supporter understands that Success will trigger the charges described below in Paragraph 4. Supporter acknowledges that stickK has not endorsed or warranted, and has no duty to verify, the accuracy of the Client’s or the Referee's reports. Supporter also acknowledges that stickK does not verify the identity of anyone logging into the Referee's or the Client’s account at the stickK domain, regardless of subdomain, and that stickK will accept any reports from the Referee's or the Client’s account as being from the Referee or the Client. Supporter and stickK agree that it is a basic assumption of the parties in making this contract that Supporter will bear the risk that the Referee and Client reports to stickK might be inaccurate.
3.5 Relationship between Client, Referee and parties to this Contract. Neither the Referee nor the Client is a party to this contract. Supporter understands that Client and Referee may agree to any procedure to be followed so that Referee may verify Client's progress towards his or her Commitment.
4. FINANCIAL TERMS
4.1 Supporter Stakes. Client promises that he or she will make all required reports to Client's account at www.stickK.com 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.
4.1.1 For weight-loss Commitment Contracts. Supporter understands that (i) Supporter has pledged a fixed amount of money to be at risk for each pound or kilogram lost by Client ("Supporter Stakes"); and (ii) such Supporter Stakes are governed by this Paragraph 4. Supporter and stickK agree that it is a basic assumption of the parties in making this contract that Supporter will bear the risk of any lost weight associated with any Reports.
4.1.2 For all other Commitment Contracts. Supporter understands that (i) Supporter has pledged a fixed amount of money to be at risk in each reporting period ("Supporter Stakes"); (ii) the amount of the Supporter Stakes will be paid by the Supporter in the event of Success; and (iii) such Supporter Stakes are governed by this Paragraph 4. Supporter and stickK agree that it is a basic assumption of the parties in making this contract that Supporter will bear the risk of any Success reported.
4.2 Supporter Representations. Supporter represents that the total of all Supporter Stakes authorized by Supporter (i.e., the total number of Supporter Stakes if Client has 100% Success or any cap Supporter set on cumulative Supporter Stakes) is less than 10 percent of Supporter’s annual income.
4.3 Payment and Billing. Supporter agrees to provide stickK with certain information, including without limitation, Supporter’s full name, address, telephone number, credit card information, and/or bank account information. Supporter 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. Supporter shall be responsible for all charges incurred as a result of Supporter’s acceptance of this Contract and support of the Client’s Commitment, including any applicable taxes. If payment cannot be charged to Supporter’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 Supporter’s access and account, thereby terminating all of stickK's obligations under this Agreement. Supporter is required to pay any amounts still owed to stickK at the time Supporter’s account is suspended or terminated.
4.4 Payment Processing.
4.4.1 For weight-loss Commitment Contracts. Supporter authorizes stickK to charge Supporter’s credit card based upon cumulative pounds or kilograms lost (rounded to the nearest whole pound or kilogram) each week by Client (based on Success as determined in Paragraph 3). The amount charged, if any, for any particular week shall equal the Supporter Stakes for each pound or kilogram lost times the cumulative pounds lost during that week based on the lowest weight achieved (each a “Forfeited Stake”). There is no refund if the Client gains weight and no double charge if the Client gains weight and then loses it back. The following example illustrates how the program works:
Supporter Stakes = $2/pound. Client’s starting weight is 150 pounds. At the end of week 1 Client weighs 143 pounds, at the end of the week 2 Client weighs 145 pounds and at the end of week 3, Client weight 139 pounds. Supporter will be charged: week 1 = $14 ((150-143)*$2); week 2 = $0 (no charge due to weight gain); week 3 = $8 ((143-139)*$2).Supporter understands that a charge could occur in each and every week and acknowledges that stickK may, in its sole discretion, elect to charge Supporter each week or upon such other schedule as stickK may adopt, provided that stickK shall effect all charges within 90 days of the termination of the Client’s Commitment Contract.
4.4.2 For all other Commitment Contracts. Supporter authorizes stickK to charge Supporter’s credit card only upon Success; such charge shall equal the Supporter Stakes for that reporting period (each a "Forfeited Stake"). Supporter understands that such a charge could occur in each and every reporting period and acknowledges that stickK may, in its sole discretion, elect to charge Supporter upon each Success or upon such other schedule as stickK may adopt, provided that stickK shall effect all charges within 90 days of the termination of the Client’s Commitment Contract.
4.5 Transfers. Supporter understands and agrees that stickK will transfer Forfeited Stakes, less certain fees and transaction costs charged by stickK, as described in Paragraph 6.5.2 ("Transferrable Stakes"), to the entity identified in the Supporter Summary Page, which Client has pre-designated as the party or entity to receive the Transferrable Stakes ("Designated Recipient"). Supporter understands that regardless of the Designated Recipient’s tax exempt status, stickK will not provide a receipt for use in supporting any deduction taken with respect to Supporter Stakes charged pursuant to this contract. stickK has no liability to Supporter or any Designated Recipient for any shortfall in the amount of funds made available by Supporter to stickK to pay the Designated Recipient. 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. Under no circumstances is stickK obligated to make transfers to third parties beyond the Transferrable Stakes.
4.5.1 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, provided that stickK shall distribute all Transferrable Stakes within 120 days of the termination of the Client’s Commitment Contract.
4.5.2 Fees. In order to pay transaction costs and compensate stickK for its services under this Agreement, stickK charges the Fees that are set forth in the supplemental terms to this Supporter Contract. The Fees do not represent any additional cost to the Supporter. Please see Supplemental Terms to the Supporter Contract for details on Fees.
5. WARRANTIES AND LIMITATION ON LIABILITY
5.1 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.
5.2 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 Supporter for any cause whatsoever, and regardless of the form of the action, in no case will exceed the lesser of Supporters cumulative Forfeited Stakes for the specific Commitment at issue or $1,000. Supporter 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.
6. TERM AND TERMINATION
6.1 Term. This Agreement shall terminate upon Success or Failure in the final report as identified in the Supporter Summary Page. The following paragraph shall continue in full force according to their terms, Paragraph 4.
6.2 Cancellation. Supporter agrees that this Contract may not be cancelled except as set forth in this Paragraph 6.2. This Contract shall be automatically cancelled if and only if the Client’s Commitment Contract is properly cancelled under the terms of the Client’s Commitment Contract. Supporter also agrees and understands that 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.
6.3 Refund Policy. stickK does not provide refunds of Forfeited Stakes except in one circumstance: (1) Client cancels the Commitment Contract pursuant to Paragraph 6.2, and (2) Supporter is improperly charged for a Success following such cancellation. In order to obtain a refund, Supporter must provide Supporter’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 Supporter to stickK. The Supporter 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 Supporter it believes is abusing this policy.
7. ALTERNATIVE DISPUTE RESOLUTION CLAUSE
7.1 Supporter 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. Supporter understands and hereby agree 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 a Supporter 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.
8. CHOICE OF LAW AND MERGER CLAUSE
8.1 This Agreement shall be governed by the internal laws of the State of Maryland determined without reference to principles of conflicts of law.
8.3 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.
9. CERTIFICATIONS, DISCLAIMERS, ACKNOWLEDGEMENTS
9.1 No person (including any Designated Recipient , Referee or Client), other than Supporter and stickK, shall have any rights under this Contract, it being the intent of the parties that there shall be no third party beneficiaries.
9.2 stickK is not a legal organization. Nothing contained in this contract or on the stickK.com website should be construed as legal advice.
9.3 This contract is void where prohibited by law.
9.4 Supporter agrees that Supporter 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. Supporter agrees that the Forfeited Stakes are the property of stickK and that stickK does not hold the Forfeited Stakes in an escrow.
9.5 stickK and Supporter each represent and warrant that:
9.5.1 stickK played no role in identifying Supporter, and
9.5.2 Supporter elected to come to stickK based on either (i) Supporter’s own accord or (ii) an invitation sent by Client to Supporter.
9.6 stickK represents and warrants that it had no knowledge of Supporter’s location prior to Supporter’s decision to register with stickK and that stickK did not pre-identify or target Supporter for participation.
9.7 Supporter certifies that Supporter has read and understands the above and agrees to the terms and conditions as signified by clicking the "I accept this Supporter Contract" icon.