Klover Holdings, Inc.
Terms and Conditions(Last revised May 4, 2020)
The following terms and conditions (the “Terms” or “Terms and Conditions”) govern your use of Klover’s websites and all mobile applications (collectively, the “Site”) and/or the products and services offered, operated or made available by Klover (collectively, the “Services”). These Services include custom financial management services provided by Klover as well as a sale of future wages to Klover.
In these Terms, “Klover Account” refers to your account with us. “You”, “Your”, or “User” refer to the person who has requested use of Klover’s products or services. “Klover”, “We”, “Us”, or “Our” refer to Klover Holdings, Inc. These Terms contain an Arbitration Agreement in Section 17. Please read that Section carefully. Please carefully review these Terms before using this Site or Services or accessing any data thereon.
1. ACCEPTANCE OF TERMS & ACCOUNT ELIGIBILITY
These Terms create a legal obligation and form an essential basis of the bargain between you and Klover, its subsidiaries, affiliates, agents and assigns. By accessing, browsing and/or using the Site or the Services, you acknowledge that you have read, understood, and agree to be bound by these Terms and to comply with all applicable laws and regulations. If you do not agree to these Terms, you may not access or use this Site or the Services.
To use this Site or the Services and to accept the Terms, you must be 1) a legal resident of the United States, 2) of legal age to form a binding contract with Klover, and 3) not prohibited by law from using the Site or the Services. Klover may suspend, restrict your access to, or cancel your Klover Account at any time, for any reason. By applying for or using your Klover Account, you acknowledge that you have received a copy of these Terms and you understand and agree to them.
3. ACCOUNT INFORMATION ACCURACY AND UPDATES
To access Klover’s Services, you must create a Klover Account. When you create a Klover Account, you will obtain a Login ID and password. After you create a Klover Account, obtain a Login ID and password, and proceed to setup your Klover Account through the Site, we will prompt you to provide us with certain information, such as, but not limited to, your name, mailing address, and email address (collectively “Account Information”).
You agree that any Account Information you provide will be accurate, current, and complete. Should any of your Account Information change, you agree that you will update this information as soon as possible. To update your Account Information, you may go to the Profile section of the Site, click on “Settings,” and update your Account Information accordingly.
You may only open one Klover Account. You may not maintain a joint account with another person and you cannot add an authorized user to your Klover Account. You agree that you will not allow another person to use or access your Klover Account and will not share your Login ID or password with other persons. You represent that you are a legal owner of, and that you are authorized to provide us with all Account Information and other information necessary to facilitate your use of the Services.
In order to use certain Services, Klover may be required to verify your identity. You authorize us to make any inquiries we consider necessary to validate your identity. If you do not respond to such inquiries or we cannot verify your identity, we can refuse to allow you to use the Services or revoke any previously granted access.
Should you believe or have reason to believe that any of your Account Information, including your Login ID and/or password, has been compromised, or that another person is accessing your Klover Account through some other means, you agree to notify us as soon as possible at support@Joinklover.com.
4. THIRD-PARTY ACCOUNT INFORMATION
To use the Services, you must direct Klover to retrieve your account transaction history, balance information, or other information maintained by third parties with which you have relationships, maintain accounts or engage in financial transactions (“Third-Party Account Information”). By using the Services, you authorize Klover, as well as third-parties service providers acting on Klover’s behalf, to access your Third-Party Account Information, on your behalf as your agent, and you expressly authorize the third parties to disclose Third-Party Account Information to us. You agree that you are responsible for maintaining the security of the passwords and usernames you use to access any third-party sites and will keep those passwords and usernames up-to-date on the Site. Klover does not review Third-Party Account Information for accuracy, legality or non-infringement. Additionally, Klover is not responsible for your Third-Party Account Information or products and services offered by or on third-party sites.
You understand that any Third-Party Account Information displayed through the Services will be the information we most recently accessed, and that this information may not reflect pending transactions or other recent activity.
5. KLOVER’S PERSONAL FINANCIAL MANAGEMENT SERVICES
5.1 Overview of the Personal Financial Management Services.
Klover offers users custom financial management services (“Personal Financial Management Services”). These services include Financial Wellness Tools, where we track your income and expenses, and we let you know about estimated upcoming bills and other expenses. The Budget feature of the Personal Financial Management Services monitors the bank account (held at a depository institution) that you link to your Klover Account (a “Bank Account”).
6. KLOVER’S ADVANCE OR BALANCE BOOST SERVICE
6.1 Overview of the Balance Boost Service.
Klover offers a service that provides advances or “Balance Boost(s)” based on your anticipated income (“Balance Boost Service”). The Balance Boost Service is a sale of future wages to Klover. We require you to connect a Bank Account and debit card to your Klover Account so that you may receive Balance Boosts and so that we may charge you for any Balance Boosts or Express Fees, as described below. If you are an eligible user, you may request to receive a Balance Boost of up to $100 into your Bank Account at any time by logging into your Klover Account. Klover may deny your request for a Balance Boost at any time or for any reason.
As noted above, all Balance Boosts are free and do not require you to pay a fee.
6.2 Express Fees.
You may request that Klover expedite disbursement of a Balance Boost by paying an optional fee (the “Express Fee”). While you will generally receive a Balance Boost within three (3) business days depending on processing times, if you choose to pay the Express Fee, the Balance Boost will be delivered to you within 24 hours. The amount of the Express Fee will be disclosed to you through the Services at the time you request a Balance Boost. We will charge your Bank Account or debit card the amount of any applicable Express Fee at the same time that we charge you for the Balance Boost, as described below in Section 6.3. This means that we will add the Express Fee to the amount of the Balance Boost when we charge you.
6.3 Balance Boost Charges.
We reserve the right to charge your Bank Account or debit card for the amount of a Balance Boost, including fees, any time after the later of: (1) a date on which we see evidence of income (such as a paycheck) deposited into your Bank Account or (2) the date selected by you through the Services. However, Klover warrants that it has no legal or contractual claim against you based on our inability to charge you for Balance Boost funds, but Klover may suspend your access to the Services until we are able to charge your Bank Account or debit card for a Balance Boost in full. With respect to a failure to receive the amount for a Balance Boost in full, Klover warrants it will not engage in any debt collection activities, place any amount we are unable to charge with or sell it to a third party, or report you to a consumer reporting agency. Klover does not waive any rights regarding fraudulent activity and will pursue instances of fraud.
Expedite fees are the following: Up-to $100, ($9.99); Up-to $50 ($7.49); Up-to $25 ($2.99); Up-to $10 ($1.99)
6.4 Overdraft and other Fees Assessed by Your Bank.
Klover is not responsible for any overdraft fees, over-the-limit fees, insufficient fund charges, or any other bank fees you are charged because you fail to maintain a sufficient balance in your Bank Account, including any overdraft resulting from a debit initiated by Klover.
7. FEE REFUNDS
Express Fees and tips are non-refundable.
8. CREDIT AND DEBIT AUTHORIZATION
You authorize Klover to credit Balance Boosts to your Bank Account. We will separately obtain a “Payment Authorization” from you to debit your Bank Account or charge your debit card, as applicable. The terms of the Payment Authorization constitute a part of these Terms and are incorporated by reference.
8.1 Credit and Debit Indemnities, Warranties and Representations
YOU AGREE TO INDEMNIFY AND HOLD KLOVER HARMLESS FROM AND AGAINST ANY LOSS INCURRED AS A RESULT OF A DEBIT OR CHARGE (COLLECTIVELY IN THIS SECTION “TRANSACTION”) TO YOUR BANK ACCOUNT OR DEBIT CARD IF ANY OF THE INFORMATION RELIED UPON IN YOUR REQUEST TO STOP A PAYMENT IS INCORRECT OR INCOMPLETE. IF YOU HAVE FOLLOWED THE INSTRUCTIONS IN YOUR PAYMENT AUTHORIZATION TO NOTIFY KLOVER OF YOUR DESIRE TO REVOKE YOUR AUTHORIZATION AT LEAST THREE (3) BUSINESS DAYS BEFORE THE SCHEDULED TRANSACTION DATE. IF WE DO NOT RECEIVE NOTICE AT LEAST THREE (3) BUSINESS DAYS BEFORE THE SCHEDULED TRANSACTION DATE, WE MAY ATTEMPT, IN OUR SOLE DISCRETION, TO CANCEL THE TRANSACTION. HOWEVER, WE ASSUME NO RESPONSIBILITY FOR OUR FAILURE TO DO SO.
YOU WARRANT AND REPRESENT TO KLOVER THAT YOU HAVE THE RIGHT TO AUTHORIZE US TO DEBIT, CHARGE, OR CREDIT (AS APPLICABLE) YOUR BANK ACCOUNT OR DEBIT CARD FOR PAYMENTS DUE TO US UNDER THIS AGREEMENT. IF YOU HAVE A JOINT BANK ACCOUNT, YOU REPRESENT AND WARRANT, UNLESS PROHIBITED BY LAW, THAT YOU HAVE THE AUTHORITY TO (A) BIND THE ABSENT ACCOUNTHOLDER; AND (B) AGREE TO THESE TERMS INDEPENDENTLY. TO THE EXTENT PERMITTED BY LAW, YOU AGREE TO INDEMNIFY AND HOLD KLOVER HARMLESS FROM ANY CLAIMS BY ANY OTHER OWNER OF THE BANK ACCOUNT OR DEBIT CARD.
YOU REPRESENT THAT THE TRANSACTIONS YOU REQUEST COMPLY WITH APPLICABLE LAW.
9. CONSENT TO CONTACT YOU
You consent to our use of prerecorded and artificial voice messages, SMS and text messages, email, and automated dialing systems to contact you with service-related information, or questions about your use of the Site, Services and/or your Klover Account. You further agree that we or third parties acting on our behalf (such as our agents, representatives, affiliates, etc.) may contact you at any telephone numbers you have provided to us even if they are for a cellular device and our contact results in charges to you. You certify, warrant and represent that any telephone number you have provided to us is your current contact number and that you are permitted to receive calls and text messages at that number. You agree to promptly alert us whenever you stop using a telephone number. Klover and our agents, representatives, affiliates and anyone calling on our behalf may use such means of communication described in this section even if you will incur costs to receive such phone messages, text messages, e-mails or other means.
Standard message and data rates may apply to all SMS messages (including text messages). We may modify or terminate our SMS messaging services from time-to-time, for any reason, and without notice.
10. LIMITATIONS ON USE
10.1 Use of the Site and Services.
You agree to use the Site and Services only for lawful purposes. You will not use the Site or Services to violate any applicable law, regulation, rule or ordinance of any nation, state, or locality or of any international law or treaty. You will not use the Site or Services in a manner that could give rise to any civil or criminal liability or that is unauthorized. Unauthorized uses include, but are not limited, to unauthorized entry into Klover’s systems, misuse of passwords, or misuse of any information posted on the Site or through the Services. Klover makes no claims concerning whether use of the Site or Services is appropriate outside of the United States. If you access the Site or the Services from outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
You agree you will not 1) try to reverse engineer, disassemble, decompile, or decipher the Site or the Services or software making up the Site and Services, 2) navigate or search the Site or Services with any tool, software, agent, engine or other means (including bots, avatars, intelligent agents, or spiders), 3) use a means other than Klover’s provided interface(s) to access the Site or the Services, 4) use the Site or the Services in a way that could impair, overburden, damage, or disable any portion of the Site or Services, or 5) mirror any material contained on the Site or the Services.
10.2 Failure to Adhere to Limitations on Use.
Klover reserves the right to take various actions against you if we believe you have engaged in activities restricted by these Terms or by laws or regulations. Klover also reserves the right to take action to protect Klover, other users, and other third parties from any liability, fees, fines, or penalties. If you fail to comply with this section, we may take actions including, but not limited to: 1) updating information you have provided to us so that it is accurate, 2) limiting or revoking your access to the Site or the Services, 3) suspending or terminating your ability to continue to use the Site or the Services, 4) taking legal action against you (note, as described in Section 6.3 (Balance Boost Charges), Klover will not take action against you if we are unable to charge you for a Balance Boost), 5) holding you liable for the amount of Klover’s damages caused by your violation of these Terms.
11. ACCOUNT REVOCATION & TERMINATION
Klover may suspend, cancel, limit, or revoke your access to and use of the Site or the Services and/or terminate these Terms and the agreement between you and us or your Klover Account at any time without notice, with or without cause, in our absolute discretion, to the extent permitted by applicable laws. The following sections of these Terms shall survive termination: Indemnification, Disclaimer of Warranties, Limitation of Liability & Unforeseen Circumstances, Waiver, Dispute Resolution by Binding Arbitration, and General Provisions (Entire Agreement; Assignment; Other Rights), and any other section that by its terms survives termination.
Klover further reserves the right to modify or discontinue, either temporarily or permanently, any portions or all of the Site or Services at any time with or without notice, as permitted by applicable laws.
12. INTELLECTUAL PROPERTY RIGHTS
The Site and the Services are owned and operated by Klover. All content, visual interfaces, information, graphics, design, compilation, computer code, products, software, services, text, data, contents, names, trade names, trademarks, trade dress, service marks, layout, logos, designs, images, graphics, illustrations, artwork, icons, photographs, displays, sound, music, video, animation, organization, assembly, arrangement, interfaces, databases, technology, and all intellectual property of any kind whatsoever and the selection and arrangement thereof (collectively, the “Klover Materials”) are owned exclusively by Klover or the licensors or suppliers of Klover and are protected by U.S. copyright, trade dress, patent, trademark laws, international conventions, other relevant intellectual property and proprietary rights, and applicable laws. Nothing on this Site or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the Klover Materials displayed on the Site or the Services, without our prior written permission in each instance. You may not use, copy, display, distribute, modify or reproduce any of the Klover Materials found on the Site or the Services unless in accordance with written authorization by us. Klover prohibits use of any of the Klover Materials as part of a link to or from the Site or the Services unless establishment of such a link is approved in writing by us in advance. Any questions concerning any Klover Materials, including whether any mark or logo is a Klover Material, should be referred to Klover. All rights related to the Klover Materials are hereby reserved.
You agree that the Klover Materials may not be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without the express prior written consent of Klover. You acknowledge that the Klover Materials are and shall remain the property of Klover. You may not modify, participate in the sale or transfer of, or create derivative works based on any Klover Materials, in whole or in part.
13. DISCLAIMER OF WARRANTIES
THIS SITE AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY STATED IN THESE TERMS, KLOVER AND ALL OF ITS SUCCESSORS, PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, STOCKHOLDERS, INVESTORS, EMPLOYEES, AGENTS, REPRESENTATIVES AND ATTORNEYS AND THEIR RESPECTIVE HEIRS, SUCCESSORS, ASSIGNS, LICENSORS AND SUPPLIERS INCLUDING PAYMENT CARD NETWORKS AND PAYMENT PROCESSORS (COLLECTIVELY, THE “KLOVER PARTIES”) DISCLAIM ANY OTHER EXPRESS OR IMPLIED WARRANTIES (INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE) AS TO THE CONTENT OR OPERATION OF THE SITE OR THE SERVICES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE OR THE SERVICES IS AT YOUR SOLE RISK.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE (TO THE EXTENT PERMITTED BY APPLICABLE LAW) ANY AND ALL RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
EXCEPT AS EXPRESSLY STATED IN THESE TERMS, THE KLOVER PARTIES MAKE NO REPRESENTATION, GUARANTEE, OR OTHER EXPRESS OR IMPLIED WARRANTIES (INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE) REGARDING THE ACCURACY, ADEQUACY, TIMELINESS, RELIABILITY, COMPLETENESS, OR USEFULNESS OF ANY OF THE INFORMATION OR CONTENT ON THE SITE OR THE SERVICES.
THE KLOVER PARTIES MAKE NO REPRESENTATION, GUARANTEE, OR WARRANTY THAT THE SITE OR SERVICES ARE FREE OF VIRUSES, BUGS, DEFECTS, ERRORS, OR OTHER COMPUTING ROUTINES THAT CONTAIN DAMAGING OR OTHERWISE CONTAMINATING PROPERTIES, OR PROGRAMS INTENDED TO INTERCEPT OR STEAL PERSONAL OR SYSTEM DATA.
PLEASE NOTE, THE ABILITY TO EXCLUDE WARRANTIES VARIES IN DIFFERENT JURISDICTIONS. TO THE EXTENT THAT A JURISDICTION PLACES LIMITS ON THE ABILITY FOR A PARTY TO EXCLUDE WARRANTIES, THESE EXCLUSIONS EXIST TO THE EXTENT PERMITTED BY LAW. BECAUSE OF THIS JURISDICTIONAL VARIANCE, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
14. NO LEGAL TAX OR FINANCIAL ADVICE
KLOVER DOES NOT INTEND TO PROVIDE YOU WITH ANY LEGAL, TAX, OR FINANCIAL ADVICE THROUGH THE SITE OR THE SERVICES. KLOVER IS NOT A LAWYER, TAX ADVISOR, BROKER, OR FINANCIAL PLANNER. YOU SHOULD CONSIDER CONSULTING AN ACCOUNTANT OR OTHER FINANCIAL ADVISOR AWARE OF YOUR INDIVIDUAL CIRCUMSTANCES BEFORE YOU IMPLEMENT ANY FINANCIAL STRATEGY OR MAKE ANY OTHER FINANCIAL DECISIONS.
15. LIMITATION OF LIABILITY & UNFORESEEN CIRCUMSTANCES
THE KLOVER PARTIES’ TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING UNDER OR RELATED TO THESE TERMS (WHETHER IN CONTRACT, TORT, OR OTHERWISE AND INCLUDING LIABILITY FOR DAMAGES, LOSSES OR CAUSES OF ACTION), IS LIMITED TO USD $1,000 (ONE THOUSAND UNITED STATES DOLLARS).
YOU ACKNOWLEDGE THAT THE KLOVER PARTIES WILL NOT BE RESPONSIBLE, UNDER ANY CIRCUMSTANCES, TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED, OR PUNITIVE DAMAGES, INCLUDING DAMAGES UNDER WARRANTY, CONTRACT, TORT, NEGLIGENCE, OR ANY OTHER CLAIMS, ARISING UNDER OR RELATING TO THESE TERMS AND YOUR USE OF THE SITE OR THE SERVICES, THE KLOVER MATERIALS, OR ANY CONTENT OR OTHER MATERIALS ON OR ACCESSED THROUGH THE SITE OR THE SERVICES, EVEN IF KLOVER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE KLOVER PARTIES WILL ALSO NOT BE LIABLE TO YOU FOR ANY USE OF INFORMATION, DATA, OR OTHER MATERIAL TRANSMITTED VIA THE SITE OR THE SERVICES, OR FOR ANY ERRORS, DEFECTS, INTERRUPTIONS, DELETIONS, OR LOSSES RESULTING FROM, INCLUDING LOSS OF PROFIT, REVENUE, OR BUSINESS, ARISING IN WHOLE OR IN PART FROM YOUR ACCESS TO, OR USE OF, THE SITE OR THE SERVICES.
YOU ACKNOWLEDGE THAT OUR SERVICES MIGHT BECOME UNAVAILABLE FROM TIME TO TIME DUE TO CIRCUMSTANCES NOT IN OUR CONTROL (SUCH AS FIRES, FLOODS, NATURAL DISASTERS, SYSTEM FAILURES OR OTHER UNFORESEEN EVENTS). WHEN THIS OCCURS, YOU MAY NOT BE ABLE TO ACCESS YOUR KLOVER ACCOUNT OR THE SITE OR THE SERVICES TO REQUEST A BALANCE BOOST OR FOR ANY OTHER PURPOSE. WE ARE NOT RESPONSIBLE OR LIABLE IF THIS HAPPENS.
PLEASE NOTE THAT SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE OR THE SERVICES OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE AND THE SERVICES.
TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE KLOVER PARTIES FROM AND AGAINST ANY AND ALL ACTIONS, CAUSES OF ACTION, CLAIMS, DEMANDS, EXPENSES, LIABILITIES, OR LOSSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES, EXPENSES, AND OTHER COSTS ASSOCIATED WITH PREPARING FOR OR DEFENDING AGAINST ANY LITIGATION OR CLAIM, ACTION, SUIT, PROCEEDING, OR DEMAND) (COLLECTIVELY “MATTERS”) ARISING OUT OF OR RELATING TO (I) YOUR ACCESS TO, USE OF OR ALLEGED USE OF THE SITE OR THE SERVICES; (II) YOUR VIOLATION OF THESE TERMS OR ANY REPRESENTATION, WARRANTY, OR AGREEMENTS REFERENCED HEREIN, OR ANY APPLICABLE LAW OR REGULATION; (III) YOUR VIOLATION OF ANY THIRD-PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY INTELLECTUAL PROPERTY RIGHT, PUBLICITY, CONFIDENTIALITY, PROPERTY OR PRIVACY RIGHT; OR (IV) ANY DISPUTES OR ISSUES BETWEEN YOU AND ANY THIRD PARTY. WE RESERVE THE RIGHT, AT OUR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, AND IN SUCH EVENT, YOU AGREE TO COOPERATE WITH OUR DEFENSE OF SUCH MATTER. YOU SHALL COOPERATE AS FULLY AS REASONABLY REQUIRED IN THE DEFENSE OF ANY SUCH MATTER. YOU AGREE NOT TO SETTLE ANY MATTER WITHOUT THE PRIOR WRITTEN CONSENT OF KLOVER.
17. DISPUTE RESOLUTION BY BINDING ARBITRATION
PLEASE READ THIS ARBITRATION AGREEMENT CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US. YOU HAVE THE RIGHT TO REJECT THIS ARBITRATION AGREEMENT AS PROVIDED BELOW. THIS ARBITRATION AGREEMENT WILL APPLY TO YOU UNLESS (A) YOU ARE ELIGIBLE TO RECEIVE BENEFITS UNDER THE MILITARY LENDING ACT BY BEING A COVERED MEMBER OF THE MILITARY PERSONNEL OR YOU ARE A SPOUSE OR LEGAL DEPENDENT OF A COVERED MEMBER OF MILITARY PERSONNEL AT THE TIME YOU OPEN YOUR ACCOUNT OR (B) YOU PROMPTLY REJECT THE ARBITRATION AGREEMENT IN ACCORDANCE WITH THE REQUIREMENTS OUTLINED IN SECTION 17.3.
17.1 Election to Arbitrate.
You and Klover agree that the sole and exclusive forum and remedy for resolution of a Claim will be final and binding arbitration pursuant to this Section 17 (the “Arbitration Agreement”), unless you opt out as provided in Section 17.3 below. The scope of this Arbitration Agreement is to be given the broadest possible interpretation that is enforceable.
As used in this Arbitration Agreement, “Claim” means any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with you) and us, including disputes relating to or arising out of these Terms, and/or the activities or relationships that involve, lead to, or result from these Terms, including your relationship with us. “Claim” has the broadest reasonable meaning and includes matters arising as initial claims, counter‐claims, cross-claims, third-party claims, or otherwise. It includes any claim, defense, or dispute concerning the formation, existence, validity, enforceability, revocation, or scope of this Arbitration Agreement, any part thereof, or the entirety of the Terms. Claims are subject to arbitration regardless of whether the remedy sought is legal or equitable, including claims for compensatory, monetary and/or punitive damages, restitution and/or disgorgement, injunctive relief, and regardless of whether they arise from contract; tort (intentional or otherwise); a constitution, statute, regulation, ordinance, common law, or principles of equity; a data breach; or otherwise. Nonetheless, You may continue to assert Claims in small claims court if your Claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis.
17.2 Applicability of the Federal Arbitration Act; Arbitrator’s Powers.
This Arbitration Agreement governs transactions involving interstate commerce. Accordingly this Arbitration Agreement shall be governed by the Federal Arbitration Act (“FAA“) and not by any state law concerning arbitration. The arbitrator shall follow applicable substantive law to the extent consistent with the FAA and applicable statutes of limitation and privilege rules that would apply in a court proceeding, and shall be authorized to award all remedies available in an individual lawsuit under applicable substantive law, including, without limitation, compensatory, statutory, and punitive damages (which shall be governed by the constitutional standards applicable in judicial proceedings), declaratory, injunctive and other equitable relief, and attorneys’ fees and costs. Upon the timely request of either party, the arbitrator shall write a brief explanation of the basis of his or her award. The arbitrator will follow rules of procedure and evidence consistent with the FAA, this Arbitration Agreement, and the Administrator’s rules. The arbitrator shall take steps to reasonably protect confidential information.
17.3 Opt-Out of Arbitration Agreement.
You may opt out of this Arbitration Agreement for all purposes by sending an arbitration opt-out notice to email@example.com, within 60 days of the date of your electronic acceptance of the Terms. The opt-out notice must clearly state that you are rejecting arbitration; provide your name, address, and Login ID; and be signed by you. We must receive your opt-out notice at the specified email address within the specified time. No other methods can be used to opt out of this Arbitration Agreement. If the opt-out notice is sent on your behalf by a third party, such third party must include evidence of his or her authority to submit the opt-out notice on your behalf.
17.4 Informal Dispute Resolution.
If a Claim arises, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost-effective means of resolving the dispute quickly. You agree that before filing any claim in arbitration, you may submit Claims by sending an email to firstname.lastname@example.org at any time.
17.5 Arbitration Procedures.
The party initiating arbitration shall do so with an arbitration company (“Administrator”), which shall be either the American Arbitration Association (the “AAA”) or Judicial Alternatives and Mediation Services (“JAMS”). To start an arbitration, the complaining party must commence the arbitration in accordance with the Administrator’s rules. If the Administrator picked by the complaining party is unable or unwilling to be the Administrator, then the arbitration company will be selected from the remaining choices listed herein or by a court. If one party starts or threatens a lawsuit, the other party can demand arbitration. To require arbitration of a Claim, the defending party must give the complaining party a written demand for arbitration. This demand may be given after a lawsuit has been filed and may be given in papers or motions in the lawsuit. It can be made if a party starts a lawsuit on an individual basis and then tries to pursue a class action or public injunctive relief. Once an arbitration demand is made, no lawsuit can be brought and any existing lawsuit must stop.
The Administrator will appoint the arbitrator in accordance with the Administrator’s rules. However, unless the parties agree otherwise, the arbitrator must be a retired or former judge or a lawyer with at least 10 years of experience. The arbitration shall be conducted according to, and the location of the arbitration shall be determined in accordance with the rules and policies of the Administrator selected, except to the extent the rules conflict with this Arbitration Agreement or applicable law. However, the Administrator may, in his or her discretion, conduct special hearings at any other place for the purpose of receiving evidence that would otherwise be unavailable at the situs of the arbitration, or for the convenience of the parties or witnesses, and that the place for the special hearing selected by the arbitrator shall also be deemed a place where the arbitrator “[is] sitting” for purposes of Section 7 of the FAA. The Administrator or any of the parties to the arbitration or any party may attend any hearing telephonically or electronically. The telephonic or electronic, adjudicative (as opposed to physical) presence of the arbitrator at a hearing satisfies the “[is] sitting” requirement of Section 7.
If you have any questions concerning the AAA or would like to obtain a copy of the AAA arbitration rules, you may call 1(800) 778-7879 or visit the AAA’s web site at: www.adr.org. If you have any questions concerning JAMS or would like to obtain a copy of the JAMS arbitration rules, you may call 1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the rules and policies of the Administrator and this Arbitration Agreement, this Arbitration Agreement shall control, subject to countervailing law, unless all parties to the arbitration consent to have the rules and policies of the Administrator apply. The arbitration will be held in the United States county where you live or work, or any other location to which we agree.
17.6 Arbitration Fees.
We shall pay all the Administrator’s filing costs and administrative fees, including hearing fees. However, each party shall bear the expense of its own attorneys’ fees, experts, and witnesses except as otherwise provided by law. If a statute gives you the right to recover any of these fees, these statutory rights shall apply in the arbitration notwithstanding anything to the contrary herein.
Within 30 days of a final award by the arbitrator, any party may appeal an award for reconsideration by a three-arbitrator panel selected according to the rules of the Administrator. In the event of such an appeal, any opposing party may cross-appeal within 30 days after notice of the appeal. The panel will reconsider de novo all aspects of the initial award that are appealed. Costs and conduct of any appeal shall be governed by this Arbitration Agreement and the Administrator’s rules, in the same way as the initial arbitration proceeding. Any final award by the individual arbitrator that is not appealed within 30 days, and any panel award on appeal, shall be final and binding, except for any appeal right under the Federal Arbitration Act (“FAA”), and may be entered as a judgment in any court of competent jurisdiction.
17.8 No Class Actions.
NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. Unless consented to in writing by all parties to the arbitration, no party to the arbitration may join, consolidate, or otherwise bring claims for or on behalf of two or more individuals or unrelated corporate entities in the same arbitration unless those persons are parties to a single transaction. Unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the rights and obligations of the named parties only, and only with respect to the claims in arbitration, and shall not: (a) determine the rights, obligations, or interests of anyone other than a named party, or resolve any Claim of anyone other than a named party; nor (b) make an award for the benefit of, or against, anyone other than a named party. No Administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this Section 17.8, and any attempt to do so, whether by rule, policy, arbitration decision or otherwise, shall be invalid and unenforceable.
You further agree that in arbitration, injunctive relief shall be limited to such relief as is necessary to remedy your own alleged injury or to prevent future injury to you alone. Any arbitral award on a class basis shall be void and shall not be subject to confirmation and no judgment shall enter thereon. An injunction granted in arbitration may provide only such relief as is necessary to remedy injury to you or to protect you alone from future injury; no judgment or order shall be entered by a court to enforce an award of the Administrator for broader injunctive relief.
Nothing in this Arbitration Agreement precludes you from seeking public injunctive relief in court. If you seek public injunctive relief, you may bring that claim in court, but you further agree that we may treat such a claim as a Claim within the meaning of this Arbitration Agreement, and that we would then have the right to demand arbitration, and if you refuse our demand, to move to enforce arbitration on an individual basis in accordance with this Arbitration Agreement pursuant to the FAA. Notwithstanding any other provisions of this Arbitration Agreement, the Court and not the arbitrator shall decide whether the FAA requires that the public injunctive relief claim be referred to arbitration on an individual basis. If we bring and lose that motion, your claim for public injunctive relief will be heard in court but you agree to stay your claim in court for public injunctive relief pending (a) exhaustion of our right to appeal from the ruling against us, and (b) completion of arbitration of all other Claims. If we win our motion, your claims for public injunctive relief will be decided in accordance with the terms of this Arbitration Agreement, meaning that the arbitrator can award only such injunctive relief as is necessary to remedy your own alleged injury or to prevent future injury to you alone.
17.9 Survival and Severability of Arbitration Agreement.
This Arbitration Agreement shall survive the termination of these Terms, your fulfillment or default of your obligations under the Terms, and/or your or our bankruptcy or insolvency (to the extent permitted by applicable law). If any portion of this Arbitration Agreement other than the class action waiver in Section 17.8 is deemed invalid or unenforceable, the remaining portions of this Arbitration Agreement shall nevertheless remain valid and in force. As such, if there is a final judicial determination that applicable law precludes enforcement of this Arbitration Agreement’s limitations as to a particular Claim for relief or particular term, then that Claim (and only that Claim) or that term (and only that term) must be severed from the Arbitration Agreement and may be brought in court. However, if an arbitration is brought on a class, representative, or collective basis, and the limitations on such proceedings in Section 17.8 are finally adjudicated to be unenforceable, then every other sentence (except this one) in the Arbitration Agreement shall be null and void with respect to that Claim and no arbitration shall be had. For avoidance of doubt, to the extent any court or arbitrator concludes that the provisions of this Arbitration Agreement regarding public injunctive relief are invalid or unenforceable, the remainder of this Arbitration Agreement shall nevertheless remain valid and in force. Rather, those provisions relating to public injunctive relief must be severed and the claim for public injunctive relief must be brought in court.
17.10 Judicial Forum for Claims.
Except as otherwise required by applicable law, in the event that this Arbitration Agreement is found not to apply to you or your Claim, you and Klover agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Cook County, Illinois. Both you and Klover consent to venue and personal jurisdiction there.
17.11 WAIVER OF JURY TRIAL; WAIVER OF RIGHT TO LITIGATE.
WE BOTH KNOWINGLY AND VOLUNTARILY WAIVE OUR RIGHTS TO A JURY TRIAL AND TO LITIGATE OUR CLAIMS BEFORE A COURT.
18. CHANGES TO THESE TERMS
Klover reserves the right to change these Terms (including by adding to or deleting from them). Klover will notify you of any changes to the Terms by posting revised Terms on the Site. We will label Terms posted to the Site with the most recent date of revision. You should check the Site periodically for changes. All changes are effective upon posting. If you do not agree to any changes, you must request that we suspend or terminate your Klover Account and stop using your Klover Account after we provide you with notice of those changes. By continuing to use the Site or the Services, you agree to the change of the Terms. Klover may terminate, suspend, change, or restrict access to all or any part of this Site or the Services without notice or liability.
19. GOVERNING LAW AND VENUE
Except for Section 17, which is governed by the FAA, these Terms are governed by the laws of the State of Illinois, without regard to conflict-of-law rules.
If any provision of these Terms is found to be invalid, unlawful, void, or unenforceable by either an arbitrator or a court of competent jurisdiction for any reason, the remaining provisions shall remain in full force and effect and be enforced to the fullest extent possible.
Klover may delay enforcing any of its legal rights or remedies under these Terms, or other legal rights or remedies Klover has under applicable laws, without waiving or those rights or remedies or any other rights in any way whatsoever.
22. GENERAL PROVISIONS (ENTIRE AGREEMENT; ASSIGNMENT; OTHER RIGHTS)
These Terms (including all policies or documents referenced herein) are the entire understanding and agreement between you and Klover regarding your use of the Site or Services. These Terms supersede any previous or other terms or other agreement between you and Klover. These Terms cannot be modified by any existing or future oral agreements.
These Terms will be binding on, inure to the benefit of, and be enforceable against both you and us and our respective successors and assigns. Neither the course of conduct between you and us nor trade practice shall act to modify any term. You may not assign or transfer these Terms or any of your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms or our rights or obligations under these Terms at any time without notice.
We hereby reserve all rights not expressly granted by these Terms. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
23. CONTACTING US
If you have questions regarding the Terms or the practices of Klover, please contact us by e-mail at email@example.com or by regular mail at Klover Holdings, Inc., 57 W Grand Ave, Suite 500, Chicago IL 60654.