Please read the terms of this Agreement carefully. THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE CLAIMS. PLEASE SEE SECTION 29 FOR THE ARBITRATION PROVISION. Your use of the Site and/or any of the Services constitutes your agreement to comply with the terms of this Agreement. If you cannot agree to or comply with this Agreement, you are expressly prohibited from use of the Site and/or the Services and must exit the Site.
1. Use of Site
You may view and use the Site and/or any information contained on the Site only in accordance with the terms of this Agreement. You may not modify, distribute, publish, license, create derivative works from, transfer or sell any information or content contained on the Site. The Site may be used only as contemplated by this Agreement. You agree to use the Site only for lawful purposes and you acknowledge that your failure to do so may subject you to civil and criminal liability as determined by applicable law.
If you wish to use the Services, you will need to provide us with certain information, including information about your identity and banking information; you will need to create a user ID and a password to protect your account information; and with your permission, which you hereby provide, we may also collect other data, including third-party, about you (collectively, “Personal Information”).
As a registered user (“User”) of the Site, you represent, warrant, and covenant that: (i) you are 18 years of age or older; (ii) the Personal Information is true, accurate, current, and complete; (iii) you will maintain and update Personal Information to keep it true, accurate, current, and complete; (iv) the Personal Information belongs to you and does not infringe or violate any patents, copyrights, trademarks, or other intellectual property, proprietary or privacy rights of any third party; and (v) you own or have obtained the right to all of the intellectual property rights concerning the Personal Information provided, and have the right to provide DailyPay the license in this Agreement to the Personal Information.
If you create an account for a business, then the business will become our customer and a User. This Agreement is a binding legal agreement between the business named on the account and DailyPay or any of its affiliates. We reserve the right in our sole discretion to refuse to approve the creation of any account.
User may not allow anyone other than its authorized agents acting on its behalf to access and use its account. User acknowledges and agrees: (i) to provide accurate and complete account and login information when creating an account; (ii) to keep all account login details and passwords secure at all times; (iii) that User remains solely responsible and liable for the activity that occurs in connection with User’s account; and (iv) to promptly notify DailyPay in writing if User becomes aware of any unauthorized access or use of User’s account. If User wishes to delete its account, User may send DailyPay an email request. A request to delete an account will become effective after we carry out the request. Deletion of an account has no effect on User’s obligations under its account or in this Agreement, and all such obligations survive account deletion without limitation.
2. Changes to Agreement and Additional Rules of Usage
DailyPay reserves the right, at any time and without prior notice, to modify, alter, or update this Agreement. The date of the most recent revision will appear at the end of this Agreement. Your continued access to the Site and use of the Services by you will constitute your acceptance of any revisions to this Agreement. Accordingly, you should review the then-current version of this Agreement from time to time, because it is binding on you. Some of the Services may be subject to additional terms, which are posted or made available separately from this Agreement (“Additional Terms”). Your use of the Services may also be subject to additional policies, guidelines, or rules we also post or make available. Such Additional Terms, policies, guidelines, and rules are incorporated and form a part of this Agreement. If there is a conflict between this Agreement and the Additional Terms, the Additional Terms will control.
All information, content, materials, illustrations, product layout and design, icons, navigational buttons, images, artwork, graphics, photography, text, data, audio sound, software and the like, as well as the selection, assembly and arrangement of these items (together, “Site Information”) posted on the Site is subject to change or removal without notice. DailyPay may make changes to the products, services, features, and functionality available at the Site at any time without notice. You may not use the Site Information for any commercial purpose, including distribution (electronically or otherwise), resale, or display.
The Site Information, the Services, products, other services, features, and functionality available through the Site are furnished “as is,” “at your own risk,” and “as available,” without any warranty, express or implied, whatsoever. Although DailyPay has attempted to provide accurate Site Information, DailyPay assumes no responsibility for the accuracy, merchantability, or completeness of the Site Information, the Services, products, other services, features, and functionality of the Site. The Site Information is provided for general information purposes only and do not constitute professional advice of any kind.
All other warranties, express or implied, including any warranties of merchantability, fitness for any particular purpose, and non-infringement of intellectual property, are specifically excluded and disclaimed. DailyPay does not warrant that the Site Information will meet any User’s requirements; that the operation of the Services will be uninterrupted or error free; or that the Site or the server that makes it available are free of viruses or bugs.
DailyPay’s obligations with respect to its products and services are governed solely by the agreements under which they are provided and nothing on the Site should be construed to alter such agreements. The Site Information and Services may be out of date, and DailyPay makes no commitment to update the Site Information or Services.
User acknowledges that (i) DailyPay does not operate as an archive or file storage service and does not undertake to store any or all of the data that User may provide, upload, import, or otherwise generate during User’s use of the Services; (ii) User is solely responsible for the backup of its data; and (iii) User may lose access to any data it deletes.
4. Employment Data Consent
By activating your DailyPay account, you consent to your employer sharing employment data required for us to perform the service you have requested. This includes (i) name, (ii) employee identification number, (iii) contact information (email and/or mobile phone number), (iv) gross and net pay, and (v) bank account and routing number for purposes of payment remittance. For the avoidance of doubt, DailyPay only requests information required to perform the Services you have requested and such information is not shared outside of DailyPay, other than with regulators and its own service providers necessary to provide the Services you have requested.
5. Limitation of Liability
To the fullest extent permitted by law, DailyPay, its suppliers, or other third parties mentioned on the Site are not liable for any direct or indirect damages whatsoever (including those resulting from lost profits, lost savings, lost data, business interruption or other special, consequential or incidental damages) arising out of or relating to: (i) the use, inability to use, or the results of use of the Site or Services, any websites or other content linked to the Site, (ii) any materials, information, product or services related to the Services or contained at any such websites or the Site, or (iii) this Agreement, or any acts under this Agreement or in furtherance of this Agreement (except for willful misconduct), whether based on warranty, contract, tort or any other legal theory and whether or not DailyPay has been advised of the possibility of such loss or damages. If your use of the Site Information or Services results in the need for servicing, repair, or correction of equipment or data, you assume all related costs. For the avoidance of doubt, User is responsible for maintaining and protecting all of the information provided, transmitted, uploaded, imported, or made accessible by using the Site. DailyPay will not be liable for any loss or corruption of such information, or for any costs or expenses associated with backing up or restoring any of such information. In no event will the liability of DailyPay for any damages exceed the total amount of fees, if any, paid by you to DailyPay for using the Services during the month prior to you bringing the claim.
7. Intellectual Property
The Site, all information and intellectual property referenced on the Site, including patents, copyrights, logos, trademarks, and trade secrets are legally owned by DailyPay or third parties. These rights apply to computer code of the Site, graphic design, products and company names on the Site, and the Site Information. All contents of the Site are protected by copyright and trademark rights, except as specifically permitted in this Agreement.
8 Links to Third-Party Websites and/or Third Party Software Products
Links on the Site to third-party websites and/or software products are provided as a convenience to you. If you use these links or software products, you might leave the Site. Some of the third parties’ software products may require you to have, and actually be signed-in to, an active user account for such third-party software products.
DailyPay has not reviewed any of these third-party sites, applications and/or software products; does not control them; is not responsible and/or liable for any of their content; and does not endorse or make any representations about them, or any information, software products, or other products or materials found on them, or any results that may be obtained from using them. If you decide to access any of the third-party sites, applications, and/or software products linked to the Site, you do so entirely at your own risk and acknowledge and agree that DailyPay has no liability for such use.
9. Ownership of the Site and Information
The Site is expressly owned and operated by DailyPay. Unless otherwise noted, the design and content features on the Site, including the Site Information, are owned by DailyPay or its affiliates or are licensed by DailyPay from third parties. The Site, each as a whole and in part, and the Site Information is protected by copyright, trademark, service mark, trade name, and other intellectual property and other proprietary rights. All other applicable rights are reserved and User will abide by all laws applicable to the foregoing. By furnishing Site Information, DailyPay does not grant any licenses to or transfer any title rights for any copyrights, patents, or any other intellectual property rights.
10. Site Availability
DailyPay will not be responsible for any disruption to the Site, regardless of duration or magnitude. DailyPay will not be liable for losses related to User’s inability to access Site Information or other Site content due to disruptions of the Site. DailyPay will be excused from its performance of any obligations under this Agreement which are prevented or interfered with by acts or conditions beyond the reasonable control of DailyPay.
You agree to indemnify DailyPay and its affiliates, directors, officers, employees, agents, representatives and third-party service providers, and to defend and hold each of them harmless, from any and all claims, actions, liabilities, damages, and costs (including attorney’s fees) (collectively, “Claims”) which may arise from your unauthorized use of the Site or Services, Site Information obtained through use of the Site, and/or from your breach of this Agreement. DailyPay reserves the right to assume the exclusive control of any such defense of any such Claim.
12. Site Security
We maintain physical, electronic, and procedural safeguards and personnel policies, consistent with applicable laws that are designed to guard the Site, our systems and Site Information provided by our Users. Unfortunately, no data transmission over the Internet can be guaranteed to be absolutely secure. In the event of a breach of the confidentiality or security of Personal Information, we will reasonably attempt to notify you as required by law so you can take appropriate steps. Unless you have directed otherwise, we may notify you under such circumstances using your most current email address or phone number on record with us.
13. Electronic Communications
When you visit the Site or send emails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by email, text, or by posting notices on the Site. We may also send notices by postal mail. We will use the points of contact we have on file for you. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically or posted on the Site satisfy any legal requirement that such communications be in writing if such requirements are applicable. You must send notices to us at the following email address: email@example.com.
14. Jurisdiction and Governing Law
DailyPay makes no representation that the Site Information or the Services offered through the Site are appropriate, available or legal in any particular location. Those who choose to access the Site Information and the Services offered through the Site do so on their own initiative and are responsible for compliance with applicable law.
Those who access the Site from locations outside New York are responsible for compliance with applicable New York law. Any claim relating to the Site or use of the Site or the Services will be governed by and interpreted in accordance with the laws of the State of New York, without reference to its conflict-of-laws principles. Any dispute arising out of or related to your use of the Site will be brought in, and you hereby consent to the exclusive jurisdiction and venue in, the competent courts in New York. You agree to waive all defenses of lack of personal jurisdiction and forum non-conveniens and agree that process may be served in a manner authorized by applicable law or court rule.
The User understands and agrees that, in addition to monetary damages, DailyPay will be entitled to equitable relief upon User’s breach of any provision of this Agreement.
User agrees that no joint venture, partnership, employment, or agency relationship exists between User and DailyPay as a result of this Agreement and/or User’s use of the Site or Services. User may not assign any part of its rights or obligations under this Agreement without DailyPay’s prior written consent, and any such attempted assignment without DailyPay’s prior written consent is and will be void. No waiver of any obligation or right of either party will be effective unless in writing, executed by the party against whom it is being enforced. The terms of this Agreement are severable and may be construed to the extent of their enforceability in light of the parties’ mutual intent. The titles and subtitles in this Agreement are used for convenience only and are not to be considered in construing it.
DailyPay does not operate as a broker or an accounting, financial, or investment planner or an advisor. We do not provide financial, business, accounting, securities, tax or legal advice. Your use of the Site and Services is at your sole discretion and risk.
16. Agreement to Do Business Electronically
You agree to do business with us electronically. This Agreement and any other agreement you have with us may be executed by electronic signature, which means by an electronic sound, symbol, or process, attached to or logically associated with this Agreement or any other agreement with us. By the electronic process of accessing the Site, creating an account, or using any of the Services, or, for purposes of Sections 18 to 2828, you selling us any Unpaid Earnings or your receipt of the related Purchase Price, you agree to this Agreement and any other agreement you have with us. You also agree to receive any information, disclosures, notices, documents, or other records electronically. With respect to this Agreement and any other agreement you may have with us, you waive any rights you may have to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law.
17. Third-Party Account Information
We use third parties to gather and verify information about your financial accounts, including obtaining your authority and right to access these accounts as well as manage and initiate transactions involving your accounts. You agree to provide true, accurate, complete, and current information about yourself and your accounts. You authorize us and these third parties to access the websites and sources of your financial accounts, on your behalf, and to gather information about you. You agree to the transfer, storage, and processing of your information by these third parties in accordance with their respective privacy policies. You give us and these third parties a limited power of attorney, and appoint us and these third parties as your true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for you and in your name and place, in any capacity, to access third party websites and sources, servers, or documents, retrieve information, and use this information, with full power and authority to do anything with the information in connection with the Services. You license to us and these third parties any information, data, passwords, materials, or other content gathered. You agree that we and these third parties may use, modify, display, and distribute this content, create new material with it, and do the same with any new material.
18. Applicability of Commercial Terms
In addition to the other terms of this Agreement, the terms of Section 18 through Section 28 of this Agreement are also agreed to and entered into by you and DailyPay upon each occasion when DailyPay pays the Purchase Price to you (“Seller”).
19. Sale; Purchase Price; Billing; Reserve; Authorization
From time to time, Seller may identify Unpaid Earnings it wishes for DailyPay to purchase from Seller. DailyPay may offer to purchase all or part of the Unpaid Earnings that Seller has requested DailyPay purchase. If you accept DailyPay’s offer, DailyPay will pay you the Purchase Price. At the time DailyPay pays you the Purchase Price, you sell, transfer, convey, and assign to DailyPay all of your right, title, and interest in and to the related Purchased Unpaid Earnings. DailyPay does not assume any liabilities or obligations related to any Purchased Unpaid Earnings; any such liabilities and obligations will remain solely with Seller.
For the avoidance of doubt, if we receive from your employer an amount that is less than the Purchased Unpaid Earnings because your employer’s business has slowed down, has ceased operations in the ordinary course of business, or for certain other reasons, and if you have not in any way otherwise breached this Agreement, you might not be in breach of this Agreement. DailyPay purchases the Purchased Unpaid Earnings knowing the risks associated with such a purchase and assumes such risks based on Seller’s representations, warranties, and covenants in this Agreement, which the Seller and DailyPay agree are designed to give DailyPay a reasonable and fair opportunity to receive the benefit of the bargain.
20. Fees and Expenses
You will pay us the Fees when we indicate due. Fees may be deducted from the payments that we facilitate or from your designated bank account.
You authorize DailyPay to initiate ACH debits to your designated bank account to receive any such Fees or additional fees or expenses owed to DailyPay.
21. Power of Attorney
You appoint us and our designees your true and lawful attorney in fact, with full power to take any action relating to the Purchased Unpaid Earnings in your name and place that we deem advisable and consistent with the terms of this Agreement. You will timely execute and deliver to us any power of attorney instrument evidencing our authority and power under this paragraph.
22. Direct Deposit
You consent to your DailyPay Routing and Account Number being used as the account of record in your employer’s payroll system and that all net pay from the employer will be remitted via such DailyPay Routing and Account Number for purposes of direct deposit on your scheduled payday. You agree to instruct your employer to use such DailyPay Routing and Account Number for such purposes.
23. Covenants By Seller
You covenant to us as follows:
- You will treat our purchase of any Purchased Unpaid Earnings as a sale for tax, accounting, and financial reporting purposes, and your books and records will reflect the sale of the Purchased Unpaid Earnings to us.
- You will take all actions, including the execution of documents, requested by us to preserve and protect our right, title, and interest in and to any Purchased Unpaid Earnings.
- You will not take any action (including placing or allowing placement of a lien or security interest on any Purchased Unpaid Earnings) or make any omission that has, individually or in the aggregate, an adverse effect on any Purchased Unpaid Earnings or on our ability to collect on any Purchased Unpaid Earnings.
- If you receive any payment on Purchased Unpaid Earnings except payment from DailyPay, you must notify us immediately, hold the amount of such payment in trust for our benefit, and remit the amount of such payment to us within three days of receipt.
24. Seller’s Disputes with Its Employer
Seller must notify DailyPay of any Dispute within five days of becoming aware of it. Resolving Disputes is the sole responsibility of Seller. Seller will work directly with its employer to resolve the Dispute. Seller will provide DailyPay periodic updates, as requested by DailyPay, regarding the status of the Dispute. A Dispute is resolved when Seller’s employer pays the full amount of the Unpaid Earnings balance, or Seller’s employer agrees to some other resolution of the Dispute. If a Dispute relates to Purchased Unpaid Earnings, Seller must resolve the Dispute within 30 days of becoming aware of it. In the event Seller is unable to resolve a Dispute within such time, and if Seller has also breached a representation, warranty, or covenant in this Agreement or of Seller’s terms of employment with its employer, Seller must immediately return to DailyPay the Purchase Price. Under such circumstances, DailyPay is authorized to initiate an ACH debit from the Seller’s designated bank account in the amount of the Purchase Price.
25. Representations and Warranties
Seller represents and warrants to DailyPay on a continuing basis:
- Seller is fully authorized to enter into this Agreement and to perform hereunder;
- This Agreement constitutes a legal and valid obligation that is binding upon Seller and that is enforceable against it in accordance with its terms;
- The execution, delivery, and performance of this Agreement do not violate applicable law or the provisions of any agreement to which Seller is bound;
- There are no claims, actions, suits, audits, inquiries, proceedings, or governmental investigations pending or threatened involving Seller, Seller’s business, or the transactions contemplated by this Agreement at law or in equity or before any governmental authority;
- Any information, materials, data, content, or documents Seller directly or indirectly provides to DailyPay are and will remain true, correct, and complete; and
- Seller has not conducted business under or used any other name, whether legal or fictitious.
Seller represents and warrants to DailyPay as of the time of each purchase of Unpaid Earnings:
- Seller holds legal title to Unpaid Earnings, free and clear of any liens or encumbrances;
- Seller has not sold, pledged, assigned, or encumbered Unpaid Earnings;
- No person, has any rights, interest, or claims in or to Unpaid Earnings;
- Unpaid Earnings are not in dispute, and are presently and unconditionally owing;
- Seller’s has accurately described the goods or services already provided by Seller to its employer;
- Unpaid Earnings are not currently past due and represent the amount owed by Seller’s employer arising solely from Seller’s actual and timely performance or provision of lawful goods or services to Seller’s employer in the ordinary course of business;
- Unpaid Earnings are not subject to any claim, offset, defense, or counterclaim of any kind;
- No agreement has been made under which Seller’s employer may claim any deduction or discount against the Unpaid Earnings, other than any such written agreements provided to and approved in writing by DailyPay in its sole discretion;
- Seller’s employer is liable for the full amount of the Unpaid Earnings and has not objected to their payment or the quality or quantity of the goods and services performed or provided;
- Unpaid Earnings have not been modified, dismissed, settled, or paid;
- There has been no error, misrepresentation, negligence, fraud, omission, or violation of law on the part of Seller with respect to the Unpaid Earnings or their underlying goods or services; and
- Seller has no knowledge that its employer has filed or intends to file for bankruptcy or receivership or has been having or expects to have any difficulty paying amounts due to you or to others in full and when due.
26. Payment Account Information
Seller will notify DailyPay immediately if it changes its payment or bank account information.
DailyPay reserves the right, in its sole discretion, to delay or eliminate payments to your account if it believes there has been fraudulent behavior and/or if there is suspicious activity surrounding your account, registration, or any subsequent activity by you or a third party.
27. Right of Setoff
DailyPay has the right of setoff, and it may offset against any outstanding or uncollected amounts owed to it by Seller, such as those described in Section 20, from any amounts DailyPay would otherwise be obligated to deposit into Seller’s bank account, from any amounts DailyPay may owe Seller under this Agreement or any other agreement.
The following terms used in this Agreement will have the following meanings:
- “Dispute” means a situation in which Seller’s employer questions any product, service, or transaction underlying Unpaid Earnings and is unwilling to pay the Unpaid Earnings or a portion of the Unpaid Earnings.
- “Fee” means the amount disclosed to you that we charge you to purchase the related Unpaid Earnings.
- “Purchase Price” means the amount of the related Unpaid Earnings we decide to purchase minus the Fee.
- “Purchased Unpaid Earnings” means the Unpaid Earnings we purchase from you by paying the Purchase Price.
- “Unpaid Earnings” means the right to payment owed to you by your employer arising out of products, property, or services you have provided to such employer or to its customers and any other related rights. Unpaid Earnings purchased by us also include any related goods, invoices, accounts (including accounts receivable), equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles, commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all of your books and records relating to the foregoing, and any and all claims, rights, and interests in any of the foregoing and all substitutions for, additions, attachments, accessories, accessions, and improvements to and replacements, products, proceeds, and insurance proceeds of any or all of the foregoing.
29. Arbitration; Waiver of Jury Trial; Waiver of Class Action
EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND US, WHETHER BASED IN CONTRACT, TORT STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND WE AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (currently available at https://www.adr.org/sites/default/files/Consumer_Rules_Web.pdf), as amended by this Agreement. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. If you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost prohibitive. The arbitrator’s decision will follow this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction. Nothing in this Agreement will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
30. Last Update