Last Revision Date: March 26, 2026
Koverly Inc. (“Koverly”) enables businesses to engage in global trade through its commercial financing, business-to-business payments, and risk management services. These Terms of Service (the “Agreement”) are a legal agreement among Koverly and you and any person or organization for which you act. This Agreement governs your use of our website located at www.koverly.com and the associated software and services. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING ANY KOVERLY SERVICES. If you do not agree to this Agreement, do not use the Services (defined below).
This Agreement provides that all disputes between you and Koverly will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and YOUR CLAIMS CANNOT BE BROUGHT AS A CLASS ACTION. Please review Section 16 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any dispute with Koverly.
As used in this Agreement, the words “you” and “your” refer to you, a user of the Services and the business on whose behalf you are opening an Account (defined below). The words “we,” “us,” “our” and any other variation thereof refer to Koverly. Any reference to Koverly in this Agreement also includes, as applicable, their respective affiliates, directors, officers, employees, contractors, owners and agents.
By accessing the Services, you agree to, and are bound by, the terms and conditions of this Agreement. If you do not agree to this Agreement, do not use the Services. You represent that you have authority to enter into this Agreement on your own behalf and on behalf of any person or organization for which you act.
Koverly may modify this Agreement at any time in its sole discretion by updating this posting. We will take reasonable steps to notify you of any material changes to this Agreement. You agree to review the Terms of Service after notice of any material changes. The Terms of Service will have “Last Revision Date” at the top. Your continued use of the Services after a modification signifies your agreement to the modification. If you do not agree to any changes, your only recourse is to discontinue your use of the Services. If you have any questions about this Agreement, please contact us at: support@koverly.com.
Koverly offers businesses a variety of services and tools, including tools for purchase financing, payment processing, money transmission, risk management, and accounting. All services offered by Koverly, currently or in the future, are referred to as the “Services,” and are subject to this Agreement. Certain Services are described briefly below, and all Services are described on the Website and/or in other marketing or explanatory materials provided by Koverly. Specific Services provided under this Agreement may be subject to additional terms and conditions, which are incorporated by reference into this Agreement as if it were set forth herein in its entirety. Not all Koverly customers are eligible to use all of the Services and Koverly reserves the right to change availability and features of one or more of the Services at any time and without notice.
Koverly provides services that generally enable businesses to purchase products and services from merchants and pay for the cost of the products and services over time (the “Financing Services”). Koverly partners with financial institutions to provide the Financing Services (the “Financing Partners”). Koverly is not a lender. Koverly reserves the right to choose which Financing Partner to engage in the making of Advances and the right to modify the selection for future Advances.
If your application to use the Financing Services is approved, you may request and receive an advance of funds from one of the Financing Partners (the “Advance”) against a line of credit (the “Line of Credit”), up to your credit limit. On your behalf, the relevant Financing Partner will disburse the Advance to the designated merchant to pay an invoice you owe to that merchant. For access to and use of the Financing Services, Koverly may charge an Advance Fee. Terms of the Line of Credit are set out in the Line of Credit Agreement. Additional terms for each Advance are included in the Advance Note.
Koverly provides services that generally enable eligible businesses to transmit and receive payments for commercial purposes seamlessly across the globe (the “Payment Services”). Koverly is a technology company and does not provide money transmission services. Instead, Koverly uses accounts established at several banks (the “Banks”) at Koverly’s request and held in the Banks’ name and for the benefit of customers of Koverly to process payment instructions. Terms and conditions for the Payment Services are set out in the Payment Services Terms and are incorporated here by reference.
Koverly provides customer onboarding, risk management, and decision automation services that enable users of Koverly’s services and their customers or vendors and other non-customers engaged in business with Customers build and manage their credit relationships (“Credit Hub”). Terms and conditions for the Credit Hub are set out in the Credit Hub Terms and are incorporated here by reference.
In order to use the Services, you must (i) be an individual of at least 18 years of age, be able to form legally binding contracts under applicable law and be authorized to enter into contracts on your business’ behalf, (ii) have a valid and active e-mail address, (iii) use the Services on behalf of a business entity; and (iv) a valid deposit account at a Koverly supported bank or payment card issued on a Koverly-supported network. Other restrictions may apply.
In order to access the Services, you must create an account (“Account”). When you set up your Account, you will be required to create log-in credentials by providing certain types of personal information including your name, a valid email address, information about your business, and a strong password (collectively, your “Registration Information”). We may also request additional information, such as your business’ EIN, after you have created your Account. You agree to provide true, accurate and complete Registration Information and to notify us promptly if any of your Registration Information changes. You agree that you will take reasonable precautions to safeguard your password and other authentication details and keep them confidential. You are responsible for all activity that occurs in association with your Account. Koverly is not liable for any loss or damages caused by your failure to maintain the confidentiality of your Account credentials.
Personally identifiable information (“Personal Information”) provided through the Services is governed by our Privacy Policy located at https://www.koverly.com/legal/privacy-policy. By using the Services, you agree to, and are bound by, the terms of Koverly’s Privacy Policy which is incorporated by reference into this Agreement as if it were set forth herein in its entirety. If you use a Service facilitated by a Financing Partner, you also agree to, and are bound by, the relevant Financing Partner’s privacy policy.
You authorize Koverly, directly or through third parties, to make any inquiries we consider necessary to verify your or your business’ identity. This may include asking you for further information, requiring you to take steps to confirm ownership of your email address, financial instruments, or information associated with your business, and verifying your Personal Information and your business’ information against third party databases or through other sources. If Koverly cannot verify your or your business’ identity, Koverly reserves the right to deny you use of the Services, to limit your use of your Account, or to close your Account.
Once you have created an Account, you may link various payment methods (each, a “Payment Method”) for the Services, including your depository accounts with financial institutions (each, a “Bank Account”) or credit or debit cards. Cards issued on the following payment networks may be used as Payment Methods for the Services: Visa, Mastercard, American Express, Discover, STAR, PULSE and Accel. Koverly supports Payment Methods provided by all U.S. financial institutions.
Koverly uses Plaid Technologies, Inc. (“Plaid”) to gather your data from financial institutions. By using the Services, you grant Koverly and Plaid the right, power, and authority to act on your behalf to access and transmit your personal and financial information from the relevant financial institution. You agree to your personal and financial information being transferred, stored, and processed by Plaid in accordance with the Plaid Privacy Policy available at https://plaid.com/legal.
Upon addition to your Account, your Bank Account may be verified to confirm its validity. A temporary, small authorization charge may appear on your bank statement. You authorize Koverly to credit your Bank Account with two (2) different and random micro deposits, which you will be required to enter once prompted through the Services. You also authorize Koverly to debit your Bank Account for the amounts of the two (2) micro deposits within ten (10) business days.
When you add a Payment Method to your Account, you agree to the following:
• You have the authority to disclose the Payment Method information and to bind the person or organization for which you act;
• You authorize the initiation of debit or credit entries, as applicable, at any time and in any amounts available to the Payment Methods, and, if necessary, the initiation of adjustments for any transactions debited or credited in error;
• You acknowledge that transactions initiated from your Payment Method must comply with the provisions of U.S. law;
• You acknowledge that transactions initiated from your Payment Method might affect up to all funds held in your Bank Account or accessible through any overdraft or similar features offered by your financial institution;
• You acknowledge that if a debt transaction is rejected for any reason, Koverly (or to the extent applicable, the Banks) reserve the right to debit your Bank Account again until the transaction is completed in accordance with applicable network restrictions. Koverly is not responsible for any fees charged by your financial institution in connection with such debt transactions, including fees related to such transactions, overdrafts, NSFs, other payments, or returned payments;
• Your authorization will remain in effect until not later than thirty (30) days after Koverly receives written notice from you of your desire to cancel and all amounts owed to Koverly for the Services have been paid in full; and
• You will not use the Services for personal, family, or household purposes or on behalf of a business other than the business identified by you when you opened your account.
The Services may enable you to upload an invoice using the camera on your mobile device or computer (the “Remote Capture Service”).
5.1. Image Quality.
The image of an invoice transmitted using Remote Capture Service must be legible and clear. It must capture all pertinent information from the front of the item. You authorize us to convert items to Image Replacement Documents (“IRDs”) or transmit them as an image. If the electronic files and/or images transmitted to us with respect to any item do not comply with our requirements for content and/or format, we may, in our sole discretion:
• Further transmit the item and data in the form received from you;
• Repair or attempt to repair the item or data and then further transmit it;
• Process the item as photocopies in lieu of originals; or
• Return the data and item to you unprocessed.
In order to use the Remote Capture Service, you must obtain and maintain, at your expense, compatible hardware and software including but not limited to an Internet connection and either a mobile phone or computer capable of capturing an electronic image.
The Services may enable you to connect to third-party services or products (“Third Party Services”). If you decide to use Third Party Services, you will be responsible for reviewing and understanding the terms and conditions for these services. We are not responsible or liable for the performance of any Third Party Services. Further, you agree to resolve any disagreement between you and a third party regarding the terms and conditions of any Third Party Services with that third party directly in accordance with the terms and conditions of that relationship, and not Koverly. The Services may contain links to third party websites. The inclusion of a link to a third party website does not imply an approval, endorsement, or recommendation by Koverly. Such third party websites are not governed by this Agreement. You access any such website at your own risk. We expressly disclaim any liability for these websites. When you use a link to go from the Services to a third party website, our Privacy Policy is no longer in effect.
Your browsing and interaction on a third party website, including those that have a link in the Services is subject to that website’s own terms, rules and policies.
IN NO EVENT SHALL KOVERLY, OUR SUPPLIERS AND OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARENTS, SUBSIDIARIES, AFFILIATES, BENEFICIARIES, SUCCESSORS, OR ASSIGNS (COLLECTIVELY, THE “KOVERLY PARTIES”), THE FINANCING PARTNERS, THEIR SUPPLIERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARENTS, SUBSIDIARIES, AFFILIATES, BENEFICIARIES, SUCCESSORS, OR ASSIGNS (COLLECTIVELY, THE “FINANCING PARTNER PARTIES”), OR THE BANKS, THEIR SUPPLIERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARENTS, SUBSIDIARIES, AFFILIATES, BENEFICIARIES, SUCCESSORS, OR ASSIGNS (COLLECTIVELY, THE “BANK PARTIES”) BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT KOVERLY, THE FINANCING PARTNERS, OR THE BANKS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH OUR SERVICES, OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). THE TOTAL LIABILITY OF THE KOVERLY PARTIES (IN AGGREGATE) TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE ACTUAL AMOUNT OF DIRECT DAMAGES ACTUALLY INCURRED IN THE SIX (6) MONTHS PRIOR TO THE DATE UPON WHICH THE APPLICABLE CAUSE OF ACTION AROSE, PROVIDED, HOWEVER, THE TOTAL LIABILITY SHALL NOT EXCEED THE AMOUNT OF THE FUNDS TRANSFERRED TO KOVERLY BY YOU. SUBJECT TO THE PRECEDING SENTENCE, THE FINANCING PARTNER PARTIES AND THE BANK PARTIES SHALL HAVE NO OTHER LIABILITY TO YOU UNDER THIS AGREEMENT.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages so the above limitation or exclusion may not apply to you. In such case, the liability of the Koverly Parties shall be limited to the greatest extent permitted under applicable law.
8.1. THE KOVERLY PARTIES, THE FINANCING PARTNER PARTIES, AND THE BANK PARTIES PROVIDE THEIR RESPECTIVE SERVICES “AS IS” AND WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. THE KOVERLY PARTIES, THE FINANCING PARTNER PARTIES, AND THE BANK PARTIES SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEITHER THE KOVERLY PARTIES, THE FINANCING PARTNER PARTIES, OR THE BANK PARTIES ARE RESPONSIBLE FOR YOUR FAILURE TO PERFORM OBLIGATIONS UNDER THE AGREEMENT AND DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY YOU, KOVERLY, THE FINANCING PARTNERS,THE BANKS, OR ANY THIRD PARTY.
8.2. Neither Koverly, the Financing Partners, nor the Banks have any control over the products or services that are paid for using the Services and Koverly, the Financing Partners, nor the Banks can ensure that a Recipient you are dealing with will actually complete the transaction or is authorized to do so. Koverly does not guarantee continuous, uninterrupted or secure access to any part of our Service, and operation of our site may be interfered with by numerous factors outside of our control. Koverly will make reasonable efforts to ensure that requests for electronic debits and credits involving credit cards are processed in a timely manner but Koverly makes no representations or warranties regarding the amount of time needed to complete processing because the Services are dependent upon many factors outside of our control, such as delays in the banking system. Some jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you.
You agree to defend, indemnify and hold the Koverly Parties, the Financing Partner Parties, and the Bank Parties harmless (including payment of reasonable attorney’s fees) against any claim or demand (including attorneys’ fees) made or incurred by any third party arising out of or relating to (a) your breach of any provision of this Agreement; (b) any actions taken by Koverly or the Banks pursuant to your instructions, including wage-and-hour law claims; (c) your use of the Services or any services of the Financing Partners or the Banks; (d) your obligations to pay fees or fines to Koverly, the Financing Partners, the Banks or any third parties; (e) negligence or willful misconduct of your affiliates, employees, contractors, or agents; and (f) all third-party indemnity obligations Koverly, the Financing Partners, or the Banks incur as a direct or indirect result of your acts or omissions (including indemnification of any payment card network, card issuer, or intermediary bank).
You may request the closure of your Account at any time by emailing Koverly at support@koverly.com. Koverly also reserves the right to close your Account at any time with or without notice to you for any reason (including failure to pay fees or inactivity). You will remain liable for all obligations related to your Account even after your Account is closed, including any fees or charges already due to Koverly.
You may not close your Account to evade an investigation. Any advances made prior to Account closure that have not been fully repaid will remain outstanding subject to the terms of your Line of Credit Agreement and your Advance Note. Any payments processed prior to Account closure will be completed by the Payment Services, except those that may be cancelled following a payment review. All scheduled payments for which you have not yet been debited at the time of Account closure will be considered cancelled.
Koverly, in its sole discretion, reserves the right to suspend or terminate this Agreement, or suspend, terminate, or limit your access to, or use of, your Account or some or all of the Services at any time and for any reason or no reason upon notice to you. Please note that Koverly reserves the right to terminate the Services at any time. Koverly will try to notify you in advance, but is not obliged to do so.
Because the Services are provided electronically, you agree that Koverly may provide important information electronically. Koverly will issue the following information and disclosures (“collectively, “Communications”) electronically via the Services or via electronic mail (“email”):
• This Agreement, the Koverly Privacy Policy, any other policies you agree to, and any amendments, modifications, or supplements to these agreements or policies;
• Disclosures or notices provided in connection with the Services, including any required by applicable law;
• Any customer service communications, including communications with respect to claims of error or unauthorized use of the Services;
• Transaction history information, and
• Any other communications related to the Services or your Account.
Your consent to do business electronically and our agreement to do so covers all transactions you conduct through the Service.
Although Koverly reserves the right to provide Communications in paper format at any time, you agree that Koverly is under no obligation to do so. All Communications in either electronic or paper format will be considered to be "in writing." You should print a paper copy of this Agreement and any Communication that is important to you and retain the copy for your records. If you do not wish to receive this Agreement or the Communications electronically, you may not use the Services.
You can withdraw your consent to receive most Communications from Koverly by emailing us at support@koverly.com or following the unsubscribe procedure contained in any Communication you receive from us. However, if you withdraw your consent, you may no longer be eligible to use certain portions of the Services. Koverly also reserves the right to terminate your Account if you withdraw consent to future electronic Communications. Any withdrawal of your consent to receive electronic Communications will be effective only after Koverly has a reasonable period of time to process your withdrawal, which period of time shall be no longer than fifteen (15) days, or such other time as is appropriate under the circumstances, as determined by Koverly in its sole discretion. Withdrawing your consent will not affect the completion of pending payments or the validity of completed payments.
You have a right to receive Communications in paper form. If, after you consent to receive Communications electronically, you would like a paper copy of a Communication we previously sent you, you may request a copy within 180 days of the date we provided the Communication to you. Koverly will provide paper copies free of charge. Requests to receive any paper copy may be made by mailing a written request to: 60 Thoreau Street, 173, Concord, MA 01742. We will provide a replacement Communication within fifteen (15) business days. In order for us to send you a paper copy of a Communication, you must have a current mailing address on file in your Account.
In order to access and retain an electronic record of Communications, you will need: a computer, a monitor, a connection to an Internet service provider, Internet browser software that supports 128-bit encryption, and an email address. By clicking the "Sign Up" button, you are confirming to Koverly that you have the means to access, and to print or download, Communications.
You grant to Koverly a non-exclusive, royalty-free right and license to use, reproduce, display, perform, modify, transmit, or distribute your trademarks, data, and other materials you provide to Koverly (other than Submitted Content, as defined in the Credit Hub Terms) (collectively, “User Materials) for the purposes of providing the Services. You shall retain all rights in and to trademarks and copyrights. You have sole responsibility for all User Materials, and you represent and warrant that you are the rightful owner or licensee of such User Materials and that the User Materials and Koverly’s use of the User Materials in accordance with this Agreement will not violate any right of privacy, personal or proprietary right, or other common law or statutory right of any third party.
Koverly has developed or acquired proprietary software and systems through which it delivers the Services (“Koverly Software”). Koverly grants you a license to access, via the internet, the Koverly Software applicable to the Services you select while you are receiving or using any Services under this Agreement, but only for your internal use and subject to the other terms and conditions of this Agreement. Koverly has developed trademarks, copyrighted materials, and other intellectual property that it may use in conjunction with the Services, or that Koverly may otherwise use on your behalf or in conjunction with making the Services available for your use. All Koverly Software and all other software, dashboards, databases, tools, websites, mobile apps, portals, technology and systems used or offered by Koverly in conjunction with the Services are collectively referred to as “Koverly Technology.” All Koverly Technology and all trademarks and other materials used by Koverly in the Services (other than those owned by you or third parties) are owned by Koverly or its licensors.
The Services may involve interaction with proprietary and/or branded websites, apps, or other technology of third parties, each of which retains all rights in and to its trademarks, tradenames, copyrights, and Koverly Technology (collectively, “Proprietary Materials”). You have no right to use any Proprietary Materials of any third parties.
In connection with your use of Services, you may elect to submit feedback, suggestions and/or other comments regarding the website and/or the Services (collectively, the “Feedback”). Koverly may, in its sole discretion, decide to incorporate some or all of this Feedback into the website and/or the Services. You hereby grant Koverly a worldwide, perpetual, nonexclusive, sublicensable, royalty-free license to use, reproduce, distribute, transmit, disclose, display, modify and create derivative works of all such Feedback. You further represent and warrant that you have all rights necessary to provide Koverly the Feedback and that the use of the Feedback by Koverly will not violate, infringe otherwise misappropriate any third party rights.
This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without reference to conflict of law provisions. Any action, proceeding, arbitration hearing or mediation relating to or arising from this Agreement must be brought, held, or otherwise occur in Middlesex County, Massachusetts.
Before filing a dispute, claim, or controversy (“Claim”) against Koverly, you agree to try to resolve the Claim informally by notice to Koverly of the actual or potential Claim. Similarly, Koverly will provide notice to you of any actual or potential Claim we may possess to endeavor to resolve any Claim informally before taking any formal action. Attempts to informally settle the Claims will include a written exchange of information describing the claims, the bases for the claims, and the relief sought, and then an in-person meeting (or a meeting by Zoom or similar electronic means), or telephonic meeting, to discuss, in good faith, a potential resolution of the Claims. Neither you nor we may commence, join, or be joined to any proceeding arising from the other party’s actions relating in any way to your Account or alleging that the other party has breached any provision of, or any duty owed by reason of, any agreement with Koverly or your Bank, until you or we have notified the other party pursuant to the notice procedures for the informal dispute resolution process described in this section, and have given the other party a reasonable period to take corrective action (if corrective action is appropriate). This applies to any conduct, fee, claim, breach, or duty accruing before or after the effective date of this Agreement. You and we agree that a reasonable period to take corrective action will be sixty (60) business days from the date the required notice was given unless applicable law specifies a shorter period for corrective action to be taken, in which case the time specified under applicable law will be deemed to be reasonable for purposes of this section. You must provide this notice once you become aware of a Claim and within the time required under applicable law. The party that provides the notice of the actual or potential Claim (the "Notifying Party") will include in that notice ("Notice of Dispute") the sender’s name, mailing address, email address, telephone number, and account information (i.e., account numbers), along with a description of the dispute and what resolution to the dispute is being sought, including an individualized calculation of any damages asserted. All applicable statutes of limitations will be considered tolled beginning on the day a compliant Notice of Dispute is sent. These details must be sufficient to allow the name of party, the Notifying Party's contact information for any communications relating to such Claim, and sufficient details regarding such Claim to enable the other party (the "Notified Party") to understand the basis of and evaluate the concerns raised. All notices given in connection with this informal dispute resolution process by either you or us must be in writing and signed by the party providing notice. Koverly will send any Notice of Dispute to your registered email address and also to the account address associated with the Account at issue. If we provide a Notice of Dispute to you in connection with this informal dispute resolution process, the Notice of Dispute will be considered to have been given to you when it is mailed to your address by first-class mail or when it is actually delivered if sent by other means. There may be only one designated Notice of Dispute address under this informal dispute resolution section at any one time.
After the 60-day period for reasonable notice is complete, if the other party has not yet taken corrective action, this informal dispute resolution process is not complete until the party providing Notice of Dispute has spoken to the other party at least once either on the telephone or in person (including via Zoom or other teleconference method) through the contact information provided herein (for us) or associated with the account (for you). If either side makes three unsuccessful attempts at oral contact without success, and can document those attempts, and if the Claim remains unresolved despite compliance with the requirements of the informal dispute resolution process herein, then the obligations of this informal dispute resolution process have been met. Notwithstanding the arbitration provision below, either party shall have the right (but not the obligation) to request that a court determine whether the other party has complied with this informal dispute resolution process. Neither Koverly nor you can proceed to arbitration without first providing a compliant Notice of Dispute and engaging in informal resolution for the required period. If you or Koverly proceed to arbitration without providing a compliant Notice of Dispute or before the end of the informal resolution period, a court may enjoin the filing and order the party that has not followed this informal resolution process to reimburse the other party for any arbitration fees and costs already incurred. If you and Koverly dispute whether a Notice of Dispute complied with this subsection, that particular dispute over compliance will be resolved by a court, not an arbitrator, notwithstanding the provision otherwise delegating to the arbitrator. Disputes over the validity, enforceability, or scope of this arbitration agreement. If the Notified Party responds within ten (10) business days after receiving the Notice of Dispute that it is ready and willing to engage in good faith discussions in an effort to resolve the Claim informally, then each party shall promptly participate in such discussions in good faith.
If either party makes a settlement offer in connection with this informal dispute resolution process, and the other party rejects that offer and pursues litigation in the relevant forum, then if the rejecting party obtains relief less than or equal to the settlement offer, the offering party shall be entitled to reasonable attorneys' fees (if any), to the extent allowed by law.
If, notwithstanding the Notifying Party’s compliance with all of its obligations under the preceding paragraph, a Claim is not resolved within thirty (30) business days after the Notice of Dispute is sent (or if the Notified Party fails to respond to the Notice of Dispute within ten (10) business days), the Notifying Party may initiate an arbitration proceeding as described below.
PLEASE READ THIS PROVISION CAREFULLY. IT PROVIDES THAT ANY CLAIM MAY BE RESOLVED BY BINDING ARBITRATION AND THAT (i) YOU ARE GIVING UP ITS RIGHT TO HAVE A TRIAL BY JURY TO RESOLVE ANY CLAIM ALLEGED AGAINST THE KOVERLY PARTIES; (ii) YOU ARE GIVING UP YOUR RIGHT TO HAVE A COURT RESOLVE ANY CLAIM ALLEGED AGAINST THE KOVERLY PARTIES; (iii) YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, AND/OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT OR ARBITRATION FILED AGAINST KOVERLY AND/OR RELATED THIRD PARTIES.
In the event of a Claim between you and the Koverly Parties, one or more of the Financing Partners, or one or more of the Banks, arising from or relating in any way to this Agreement, the Services, or to the relationship formed between the parties as a result of this Agreement, including Claims regarding the applicability of this arbitration clause or the validity of the entire Agreement, the Claim shall be resolved exclusively and finally by binding arbitration administered by the American Arbitration Association (“AAA”) under the AAA’s Commercial Arbitration Rules. The only exception to this obligation to arbitrate are claims within the jurisdiction of small claims court, in which case the parties have the right to resolve the dispute in small claims court and may request that the AAA terminate arbitration and order the parties to proceed to small claims court. The parties agree that in determining the amount in controversy for purposes of small claims court, attorneys’ fees under any theory are not part of the amount in controversy. All Claims are subject to arbitration, no matter what theory they are based on. This includes Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other source of law. Claims and remedies sought as part of a class action, private attorney general, or other representative action are subject to arbitration on an individual (non-class, non-representative) basis. You and Koverly, one or more of the Financing Partners, or one or more of the Banks (as the case may be) will agree on another arbitration forum if the AAA ceases operations. The arbitration will be conducted before a single arbitrator and will be limited solely to the Claim between you and Koverly, one or more of the Financing Partners, or one or more of the Banks (as the case may be). The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class-wide or class action basis. The prohibition against class action contained in this Section 26 shall be non-severable from the remainder of this Section 26.
If either party prevails in the arbitration of any Claim against the other, the non-prevailing party will reimburse the prevailing party for any fees it paid to the AAA in connection with the arbitration, as well as for any reasonable attorneys’ fees incurred by the prevailing party in connection with such arbitration. Any decision rendered in such arbitration proceedings will be final and binding on the parties, and judgment may be entered in a court of competent jurisdiction. Rules and forms of the AAA may be obtained and Claims may be filed at any AAA office, www.adr.org, or 335 Madison Avenue, New York, NY 10017, telephone 1-800-778-7879. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16. This arbitration agreement applies to all Claims now in existence or that may arise in the future. Nothing in this Agreement shall be construed to prevent any party’s use of (or advancement of any Claims, defenses, or offsets in) bankruptcy or repossession, replevin, judicial foreclosure or any other prejudgment or provisional remedy relating to any collateral, security, or other property interests for contractual debts now or hereafter owned by either party to the other. IN THE ABSENCE OF THIS ARBITRATION AGREEMENT, YOU AND KOVERLY, ONE OR MORE OF THE FINANCING PARTNERS, OR ONE OR MORE OF THE BANKS MAY OTHERWISE HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR A JURY AND/OR TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY OTHERS (INCLUDING CLASS ACTIONS), BUT EXCEPT AS OTHERWISE PROVIDED ABOVE, THOSE RIGHTS, INCLUDING ANY RIGHT TO A JURY TRIAL, ARE WAIVED AND ALL CLAIMS MUST NOW BE RESOLVED THROUGH ARBITRATION. Any dispute over issues of arbitrability are expressly delegated to the arbitrator.
For Claims in which the claimant seeks less than USD $10,000, the arbitrator will decide the matter solely on the basis of written submissions, without a formal hearing, unless the arbitrator decides for good cause shown that a formal hearing is necessary. For matters in which the claimant seeks USD $10,000 or more, or smaller matters in which the arbitrator determines a hearing to be necessary, hearings shall be conducted by video or telephone, unless the arbitrator determines an in-person hearing to be necessary for good cause shown. Unless you and Koverly agree otherwise, the arbitrator’s decision or award will include a written statement stating the decision of each claim and the basis for the award, including the arbitrator’s essential factual and legal findings and conclusions.
You and we hereby agree that any arbitrator shall have the power to award costs or fees as a sanction consistent with conduct sufficient to warrant sanctions under either Federal Rule of Civil Procedure 11 or 28 U.S.C. § 1927. You and we also agree that any attorney representing you in any arbitration must be licensed to practice law in the jurisdiction where the arbitration takes place. In all cases, the arbitrator shall dismiss an arbitration demand on the pleadings if it does not contain sufficient factual matter to state a claim to relief that is plausible on its face. Any arbitration demand must be personally signed by you or by a Koverly representative. The arbitrator will not be bound by rulings in prior arbitrations involving different Koverly customers, but will be bound by rulings in prior arbitrations involving the same customer to the extent required by applicable law. As limited by applicable law, this agreement, and the applicable rules, the arbitrator will have (1) the authority and jurisdiction to make all procedural and substantive decisions regarding a Claim, including the determination of whether a claim is arbitrable, and (2) the authority to grant any remedy that would otherwise be available in court. At the end of any arbitration, the arbitrator may award reasonable attorney’s fees and costs or any portion thereof to either party upon determining that the claim, cross-claim, or defense is frivolous or brought for an improper purpose (as measured by the standards of Federal Rule of Civil Procedure 11(b)) to the extent authorized by applicable law.
Nothing contained in this arbitration agreement shall prevent either you or Koverly from applying to any court of competent jurisdiction for emergency provisional relief, such as a temporary restraining order, a temporary protective order, an attachment or any other pre-judgment remedies. Nothing contained in this arbitration agreement will prevent either you or Koverly from exercising self-help remedies, including non-judicial foreclosure, repossession, or set-off, as appropriate.
Any determination as to whether this arbitration agreement is valid or enforceable in part or in its entirety will be made solely by the arbitrator, including without limitation any issues relating to whether a Claim is subject to arbitration; provided, however, the enforceability of the Waiver of Jury Trials and Class Actions set forth herein shall be determined by the Court.
Unless the law requires otherwise, any action or proceeding by you to enforce an obligation, duty, or right arising under this arbitration agreement or by law or otherwise must be commenced within one year after the cause of action accrues.
If you have a Claim with third parties, you release Koverly, the Financing Partners, and the Banks (and their respective officers, directors, agents, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such Claims.
To the extent that you use Koverly to issue checks or payments to independent contractors, you expressly acknowledge and agree that you (not Koverly and not the Banks) are responsible for compliance with all wage and hour laws, including but not limited to compliance with Cal. Labor Code § 2750.3, and all applicable laws regulating the time, place, and manner of payments for their service. Koverly provides a means for transmitting funds. However, you (not Koverly and not the Banks) are responsible for complying with all laws pertaining to the classification of independent contractors and payment for their services.
This Agreement together with any other Koverly documents, policies and/or agreements referenced herein sets forth the entire understanding between you and Koverly with respect to the Services and you and the Banks with respect to banking services or payment processing services. The following sections of this Agreement and all other terms which by their nature should survive, will survive the termination of this Agreement: 9 (Limitation of Liability), 10 (Disclaimer of Warranties), 16 (Dispute Resolution and Arbitration), 17 (Release of Koverly, the Financing Partners, and the Banks), and 19 (General). If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced.
“Koverly”, and all logos related to Koverly, are either trademarks or registered trademarks of Koverly or its licensors. You may not copy, imitate or use them without Koverly's prior written consent. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Koverly. You may not copy, imitate, or use them without our prior written consent. All right, title and interest in and to the Koverly website, any content thereon, the Services, the technology related to the Services, and any and all technology and any content created or derived from any of the foregoing, is the exclusive property of Koverly and its licensors.
Neither Koverly, the Financing Partners, nor the Banks shall be liable for any issues or delayed performance caused by circumstances beyond Koverly's, the Financing Partners’, or the Banks’ reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, service provider failures or delays.
You may not transfer or assign any rights or obligations you have under this Agreement without Koverly's prior written consent. Koverly reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time.
If any provision of this Agreement is held to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
If Koverly fails or delays in exercising any right, power or remedy or to take action against any breaches of this Agreement, it does not mean that it waives its right at a later time to enforce the same.
Unless otherwise stated in this Agreement, notices, inquiries, and requests to Koverly should be emailed to support@koverly.com. Please note that email communications sent to Koverly for Account-related matters (e.g., late fee reimbursements, refund requests, etc.) must come from the email address listed in your Account. Account-related communications initiated via other channels may require identity verification in order to obtain information or change settings.
18.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without knowledge of any breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement, the Line of Credit Agreement, any Advance Note, or any Order Form to any third party other than its affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its affiliate, legal counsel or accountants will remain responsible for such affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, in addition to the permissions herein, Koverly may disclose the terms of this Agreement to a contractor or partner to the extent necessary to perform Koverly’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
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