Terms and Privacy
Welcome to the DailyPay Program!
We want you to completely understand the DailyPay Program. These DailyPay Program Terms (“Program Terms”) explain important things you should know about the DailyPay Program.
By using the DailyPay Program, you agree to these Program Terms and the DailyPay Site Terms available at:
https://www.dailypay.com/legal/#site-terms. Please read these Program Terms and the DailyPay Site Terms carefully.
Capitalized terms used in these Program Terms have the meanings provided in Section 9 below.
1. The DailyPay Program Provides You with Free Informational and Budgeting Tools
DailyPay provides software to your employer to help your employer manage and administer its payroll processes, including the timing of payments of payroll funds, by integrating its payroll, time management, workforce management, other human resources systems, and certain employee communications systems. The DailyPay Program provides you with information and budgeting tools, which you can use for free. The information and tools the DailyPay Program provides you can help you monitor the hours you have worked, analyze and predict your net pay, and obtain a better picture of how much money you have earned so you can budget.
2. You Can Also Use the DailyPay Program to Access Your Unpaid Earnings, for a Transaction Fee
In addition to the information and budgeting tools described in Section 1, you can use the DailyPay Program to access, for a transaction fee, some or all of the money you have already earned (i.e., your Unpaid Earnings).
Here is how this feature works:
From time to time, you may log into your DailyPay account and ask us to access some or all of your Unpaid Earnings. You must link one of your own bank accounts to your DailyPay account, and each time you ask us to access any Unpaid Earnings, we will ask you to confirm your linked bank account for your receipt of payments. We will also tell you how much of your Unpaid Earnings we are willing to provide, and we will disclose our transaction fee to you. You will have an opportunity to accept or decline the transaction terms. When you accept the transaction terms, you give us all right, title, and interest to the related Daily Earnings, and we will send the Amount Provided to your linked bank account, so that you can use your money whenever, wherever, and however you wish.
Our right to receive your Daily Earnings is non-recourse. This means that if your employer pays us an amount that is less than the amount of the Daily Earnings—for example, if your employer is unable to make payroll because its business has slowed down or closed in the ordinary course of business—and if you have not breached these Program Terms, then you will owe us nothing.
We know that having the right to receive your Daily Earnings has associated risks, and we assume these risks based on the representations, warranties, and promises you make in these Program Terms. You agree that the provisions of these Program Terms are designed to give us a reasonable and fair opportunity to receive the benefit of our transaction with you.
Before you can use the feature described in this Section 2, you will need to set it up with your employer. You will receive a DailyPay Routing and Account Number from us for an account that we establish for your participation in the DailyPay Program. You agree to make direct deposit arrangements with your employer using your DailyPay Routing and Account Number as the account of record in your employer’s payroll system. You agree to instruct your employer to direct all of your net pay to that account, and you authorize us to convey such instructions to your employer on your behalf. This means that when your employer runs payroll, all of your net pay will be directly deposited in the account bearing the DailyPay Routing and Account Number. For each pay period, we will keep any Daily Earnings, and you will receive the rest of your Unpaid Earnings in your linked bank account.
You must notify us immediately if your linked bank account information changes. If you do not, your DailyPay account and your participation in the DailyPay Program, including your payments or Daily Earnings and Unpaid Earnings, could be adversely impacted. We are not liable for any of these adverse impacts. We also do not control when your bank posts incoming payments to your linked bank account, so there may be delays which are beyond DailyPay’s control and which you may resolve with your bank. You may also change the linked bank account we have on file for you through the Site by changing your DailyPay account settings. If you have any difficulty changing your settings, you may email us a request for assistance at: firstname.lastname@example.org.
We may use third-party service providers to interact with your linked bank account, including obtaining and exercising your authority to manage and initiate debit and credit transactions involving your linked bank account. You authorize us and these third-party service providers to interact with your linked bank account to the extent necessary to provide you the DailyPay Program.
We reserve the right, in our sole discretion, to delay, suspend, or terminate your access to your DailyPay account, your participation in the DailyPay Program, and payments if we believe there has been fraudulent or suspicious activity related to your DailyPay account.
3. You Consent to Your Employer Sharing Employment Data with Us and Receiving Data from Us
The DailyPay Program relies upon information from your employer about you. You consent to your employer sharing employment data required for us to provide the DailyPay Program. This includes:
- Your name;
- Your employee identification number;
- Your contact information (including your email and your mobile phone number);
- Your earnings and timecard information;
- Your gross and net pay;
- Your bank account information (for purposes of facilitating payments); and
- Any other related data shared by your employer.
DailyPay only requests information from your employer that is required to provide the DailyPay Program, and such information is not shared outside of DailyPay, other than with regulators, your employer, and DailyPay’s service providers that are necessary to provide the DailyPay Program.
DailyPay cannot provide retroactive access to Unpaid Earnings that arose before you established your DailyPay account.
If your DailyPay account is closed, you authorize us to inform your employer and to provide your employer for payroll purposes the linked bank account information and related information we have on file for you. You consent to your pay being sent to the linked bank account we have on file for you after DailyPay account is closed unless you specify otherwise.
4. Rules of the Road
You promise us that:
- 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 Daily Earnings;
- You will not take any action or make any omission (including redirecting payments, or placing or allowing placement of a lien or security interest on any Daily Earnings) that has, individually or in the aggregate, an adverse effect on our ability to collect on or retain any Daily Earnings; and
- You will not use the DailyPay Program to obtain more Unpaid Earnings than you have earned, including receiving payments on the Daily Earnings from both DailyPay and another person for the same work. If you receive a payment on the Daily Earnings from your employer or someone other than DailyPay, you must notify us immediately and hold the amount in trust for our benefit, or if we otherwise learn that you are expected to receive such a payment from your employer or someone other than DailyPay, and in either case we may debit your linked bank account in the amount of the Daily earnings, as provided in Section 7, or otherwise provide remittance instructions to you.
5. You Make Certain Representations and Warranties to Us
You represent and warrant to us on a continuing basis that:
- These Program Terms constitute a legal and valid contract that is binding on you and enforceable against you as written;
- The execution, delivery, and performance of these Program Terms by you does not violate any law or the provisions of any agreement to which you are bound;
- There are no claims, actions, suits, audits, inquiries, proceedings, or governmental investigations pending or threatened involving you or the transactions contemplated by these Program Terms that, if adversely determined, would be reasonably expected to have an adverse effect on our ability to collect on or retain any Daily Earnings; and
- You have not used any name with us or with your employer other than the name you used or verified to establish your DailyPay account.
- And each time you ask us to access any of your Unpaid Earnings, you also represent and warrant to DailyPay that at the time of your request:
- You hold all legal right, title, and interest to and in the Unpaid Earnings, free and clear of any liens, encumbrances, judgments, or garnishments; and you have not sold, pledged, assigned, or encumbered the Unpaid Earnings;
- The Unpaid Earnings are presently and unconditionally owing and have not been modified, dismissed, settled, or paid; are not currently past due; and represent the amount owed by your employer arising solely from your actual and timely provision to your employer in the ordinary course of business of lawful services, which you have accurately recorded and described to your employer;
- The Unpaid Earnings are not subject to any Dispute, claim, offset, deduction, discount, defense, or counterclaim of any kind; and
- There has been no error, misrepresentation, negligence, fraud, omission, or violation of law on the part of you with respect to the Unpaid Earnings or their underlying services.
6. You Are Responsible for All Disputes Between You and Your Employer
The DailyPay Program relies upon information from your employer about you. Sometimes your employer might disagree with you about the amount of Unpaid Earnings you earned or the amount that it owes you. We do not resolve or otherwise become involved in Disputes between you and your employer. Instead, resolving such Disputes is your sole responsibility. You must notify us of any Dispute immediately but in no event more than five days of becoming aware of it, and you must work directly with your employer to resolve the Dispute. A Dispute is resolved when your employer pays the full amount of the disputed Daily Earnings. You will provide DailyPay periodic updates, as requested by DailyPay, regarding the status of the Dispute.
You must resolve any Dispute related to the Daily Earnings within 30 days of becoming aware of it. If you are unable to resolve a Dispute related to the Daily Earnings within 30 days of becoming aware of it, then you must immediately send us payment in the amount of the Amount Provided but in no event more than three additional days. If we learn that you did not send us payment pursuant to this paragraph, we may debit your linked bank account as provided in Section 7.
7. We May Debit Your Linked Bank Account to Correct Errors, Fraud, and Other Breaches of these Program Terms
You authorize us to initiate an ACH account debit from your linked bank account in the amount specified below whenever any of the following events occur:
- If we pay you an amount you did not request or more than the Amount Provided due to an operational error, then the difference up to the amount of the error;
- If you directly receive any payment on the Daily Earnings from your employer or someone other than DailyPay pursuant to Section 4, or if we learn that you are expected to receive such a payment from your employer or someone other than DailyPay, then up to amount of the Daily Earnings you received; or
- If you otherwise receive or retain an Amount Provided that was determined with respect to Daily Earnings in excess of those to which you were legally entitled to receive from your employer, misdirect funds from DailyPay, or commit any other act (or omit any other act) that is a breach the representations, warranties, or promises of Sections 4, 5, or 6 (including if you are unable to resolve a Dispute related to the Daily Earnings and did not send us payment), then up to the Amount Provided.
If we decide to debit your linked bank account, we will notify you at least one business day before we debit your account; provided, if we reasonably and in good faith believe that you have defrauded or intend to defraud us, we may notify you contemporaneously with the debit transaction. In addition to exercising the ACH account debit authority you provide us in this Section 7, we retain the right to pursue any other remedy permitted by law or equity.
8. We Have the Right of Setoff
We have the right of setoff, and we may offset against any outstanding or uncollected amounts owed to us by you from any amounts we would otherwise be obligated to furnish to you or any amounts we might otherwise owe you under these Program Terms or any other agreement. If we decide to exercise our right of setoff, we will notify you at least seven days before we exercise it. In addition to exercising our right of setoff, we retain the right to pursue any other remedy permitted by law or equity.
9. Definitions Used in These Program Terms
The following terms used in these Program Terms have the following meanings:
- “Amount Provided” means the amount of the Daily Earnings, minus our transaction fee. Our transaction fee is deducted from the payments to you that we facilitate.
- “Daily Earnings” means the Unpaid Earnings we have agreed to make available to you before your employer runs payroll for a specified transaction fee.
- “DailyPay,” “our,” “us,” and “we” mean DailyPay, Inc.
- “DailyPay Program” means a Service offered by DailyPay that you can use to access, for a transaction fee, some or all of your Unpaid Earnings.
- “DailyPay Routing and Account Number” means an account and routing number that DailyPay establishes for your participation in the DailyPay Program.
- “Dispute” means a situation in which your employer questions, objects, denies, challenges, or contradicts the quality, quantity, or other aspect of any of your services that are related to the Unpaid Earnings, and is unwilling to pay or claims a right to recover any portion of the Unpaid Earnings.
- “Program Terms” means these DailyPay Program Terms.
- “Service” has the meaning set forth at the top of the DailyPay Site Terms.
- “Site” has the meaning set forth at the top of the DailyPay Site Terms.
- “Site Information” has the meaning set forth in Section 3 of the DailyPay Site Terms.
- “Unpaid Earnings” means the right to payment (e.g., account receivable) owed to you by your employer arising out of services you have provided to your employer or its customers and any other related rights.
- “User Content” means, in addition to information that is made available to DailyPay through your use of the DailyPay Program, information about you that you provide DailyPay, including information about your financial, personal, or professional activities.
Last updated: March 20, 2019
Welcome to the DailyPay movement!
DailyPay provides software to employers and payroll companies that allows them to pay employees daily. Our goal is to revolutionize payroll to be more transparent and accessible.
We want you to completely understand what we do, how we do it, and what is required of you. These Site Terms (“Terms”) explain things you should know about using www.dailypay.com, www.trydailypay.com, our applications (together, the “Site”), and any of the services (the “Services”) provided by DailyPay, Inc. (“DailyPay,” “our,” “us,” or “we”) on or through the Site. The Services include the “DailyPay Program,” a service that enables an employee to access unpaid earnings. The DailyPay Program Terms (www.dailypay.com/terms) (“Program Terms”), which supplement these Terms, govern the DailyPay Program.
IMPORTANT: THESE TERMS CONTAIN AN AGREEMENT TO RESOLVE ANY DISPUTES THROUGH ARBITRATION UNLESS YOU CHOOSE TO OPT OUT OF THE ARBITRATION AGREEMENT, WAIVE CLASS ACTIONS, AND WAIVE JURY TRIALS (SECTION 17), DISCLAIMERS (SECTION 3), AND LIMITATIONS ON LIABILITY (SECTION 4). PLEASE READ THESE TERMS, INCLUDING THOSE SECTIONS, CAREFULLY.
UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT, (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST DAILYPAY OR YOUR EMPLOYER RELATED TO YOUR USE OF THE SITE AND THE SERVICES ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION OR PROCEEDING, AND YOU WAIVE YOUR RIGHTS TO SEEK RELIEF IN A COURT OF LAW AND TRIAL BY JURY. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF THE ARBITRATION AGREEMENT BY FOLLOWING THE INSTRUCTIONS PROVIDED IN SECTION 17.F.
By using the Site or any of the Services, you agree to these Terms. If you do not agree to these Terms, do not use the Site or any of the Services and close your DailyPay account.
1. Use of the Site
The Site may be used only according to these Terms. You may use the Site only for lawful purposes. You may not modify, distribute, publish, license, create derivative works from, transfer, or sell any information or content contained on the Site.
If you wish to use certain parts of the Site or the Services, you will need to establish a DailyPay account by providing us with certain information, including information about your identity and, in some cases, banking information; you will need to establish user access credentials, including a password and other multi-factor authentication credentials, to protect your DailyPay account; and you also authorize us to collect such data and other data, including third-party information and information from your employer, about you (collectively, “Personal Information”).
If you are not at least 18 years of age, you may not use the Site, Site Information, or Services without the consent of your parent or legal guardian, which you must provide to us, in the form we specify, when you establish your DailyPay account. We will also require your parent or legal guardian to agree, in the form we specify, to take full responsibility for all activity related to your DailyPay account and all of your duties under these Terms and any Additional Terms (as defined below) before you may use the Site, Site Information, or Services.
We reserve the right, in our sole discretion, to refuse to approve a DailyPay account and to delay, suspend, or terminate access to any DailyPay account, the Site, or participation in any Service.
You represent, warrant, and promise that:
- If an individual, you are at least 18 years of age;
- You are fully authorized to enter into and perform under these Terms;
- These Terms constitute a legal and valid contract that is binding on you and enforceable against you as written;
- The execution, delivery, and performance of these Terms by you does not violate law or the provisions of any agreement to which you are bound;
- There are no claims, actions, suits, audits, inquiries, proceedings, or governmental investigations pending or threatened involving you or the transactions contemplated by these Terms;
- The name you used or verified to establish your DailyPay account is your legal name, and you have not used any other name with us;
- Any information, materials, data, content, or documents you provide or make available to DailyPay are and will remain true, correct, and complete;
- You will maintain and update Personal Information to keep it true, accurate, current, and complete;
- You own or have obtained the right to all of the intellectual property rights concerning the Personal Information you provide DailyPay, and you have the right to provide DailyPay the license in these Terms to your Personal Information;
- You will keep all login details, user accounts, and passwords secure at all times and will not allow anyone else, other than your authorized agents, to access your DailyPay account; and
- You are and will remain solely liable for the activity that occurs in connection with your DailyPay account and will notify us immediately if you become aware of any unauthorized access to your DailyPay account.
2. Additional Terms; Changes; Account Closure
DailyPay may offer you Services, such as the DailyPay Program, which are subject to additional terms and conditions that are available on the Site or otherwise made available to you separately from these Terms (“Additional Terms”). The Program Terms are an example of Additional Terms. Any Additional Terms are incorporated and form a part of these Terms. If there is a conflict between these Terms and the Additional Terms, the Additional Terms will control with respect to the conflict.
We reserve the right, in our sole discretion, to change these Terms and any Additional Terms. We will post on the Site or otherwise make available to you any changes. Your continued use of the Site or any Service will constitute your acceptance of any changes.
If you wish to close your DailyPay account, you may do so through the Site by changing your DailyPay account settings. If you have any difficulty doing so, you may email us a request for assistance at: email@example.com. An account closure request will become effective after we carry out the request. An account closure has no effect on your duties to us, all of which survive the closure and the expiration or termination for any reason of these Terms or any Additional Terms.
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”) 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 or through the Services without notice. Without our prior written consent, you may not use the Site Information for any commercial purpose, including distribution, resale, or display.
The Site Information is provided only for general information purposes. DailyPay does not operate as a lender, a broker, or an accounting, financial, or investment planner or advisor. We do not provide financial, business, accounting, securities, tax, legal, or professional advice of any kind. Your use of the Site and Services is at your sole discretion and risk.
Although DailyPay has attempted to provide sound materials, DailyPay assumes no responsibility for the accuracy, merchantability, or completeness of the Site, the Site Information, the Services, or other services, products, features, or functionality of the Site; and DailyPay makes no commitment to update them. The Site, the Site Information, and the Services are furnished “as is,” “at your own risk,” and “as available.” All 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. Further, DailyPay does not warrant that the Site Information will meet any person’s requirements. The Site or Services (and any server that makes the Site or Services available) may not be uninterrupted or free of errors, viruses, or bugs.
DailyPay is not liable for any disruption to the Site, Site Information, or Services and is not liable for losses related to your inability to use them for any reason. DailyPay is excused from performing any duties under these Terms or Additional Terms which are prevented or interfered with by conditions beyond DailyPay’s reasonable control.
4. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, DAILYPAY AND ITS AFFILIATES, AND EACH OF THEIR OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, THIRD-PARTY SERVICE PROVIDERS, SUPPLIERS, AND 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:
- THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE SITE, SITE INFORMATION, SERVICES, OR ANY WEBSITES OR OTHER CONTENT LINKED TO THE SITE;
- ANY SITE INFORMATION, MATERIALS, PRODUCTS, SERVICES, FEATURES, AND FUNCTIONALITY AVAILABLE AT THE SITE, THROUGH THE SERVICES, RELATED TO THE SERVICES, OR CONTAINED ON ANY SUCH WEBSITES OR OTHER CONTENT LINKED TO THE SITE; OR
- THESE TERMS, THE ADDITIONAL TERMS, OR ANY ACTS OR OMISSIONS UNDER OR IN FURTHERANCE OF THESE TERMS OR THE ADDITIONAL TERMS (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, SITE INFORMATION, THE SERVICES, OR ANY WEBSITES OR OTHER CONTENT LINKED TO THE SITE RESULTS IN THE NEED FOR SERVICING, REPAIR, OR CORRECTION OF EQUIPMENT OR DATA, YOU ARE LIABLE FOR ALL RELATED COSTS.
DAILYPAY DOES NOT OPERATE AS AN ARCHIVE OR FILE STORAGE SERVICE AND DOES NOT UNDERTAKE TO STORE ANY OF THE DATA THAT YOU MAY PROVIDE, UPLOAD, IMPORT, OR OTHERWISE GENERATE DURING YOUR USE OF THE SITE OR SERVICES. YOU ACKNOWLEDGE THAT YOU ARE SOLELY RESPONSIBLE FOR MAINTAINING, PROTECTING, AND BACKING UP YOUR DATA AND THAT YOU MAY LOSE ACCESS TO ANY DATA PROVIDED, TRANSMITTED, UPLOADED, IMPORTED, OR MADE ACCESSIBLE BY USING THE SITE OR SERVICES. DAILYPAY WILL NOT BE LIABLE FOR ANY LOSS OR CORRUPTION OF SUCH DATA, OR FOR ANY COSTS OR EXPENSES ASSOCIATED WITH BACKING UP OR RESTORING SUCH DATA.
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 ANY OF THE SERVICES DURING THE MONTH PRIOR TO YOU BRINGING THE CLAIM.
6. Links to Third-Party Websites; Third-Party Software Products
Links on the Site to third-party websites 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 into, an active user account for such third-party software products.
DailyPay has not reviewed these third-party websites, applications, or software products; does not control them; is not liable for their content; and does not endorse or make any representations, warranties, or promises 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. You use third-party websites, applications, or software products linked to the Site at your own risk and agree that we have no liability for such use.
7. Third-Party Distribution Channels
Our software applications may be made available to you through the Apple Inc. (“Apple”) App Store, Android Marketplace, or other distribution channels (each, a “Distribution Channel”). If you obtain a software application through a Distribution Channel, you may be subject to additional terms of the Distribution Channel. These Terms are between only you and us, and not with a Distribution Channel. If you utilize any other third-party products or services in connection with your use of our Site or Services, you agree to comply with all applicable terms of any agreement for such third-party products or services.
The following additional terms and conditions apply for a software application made available for your use with an Apple-branded product (“Apple-Enabled Software”):
- DailyPay and you acknowledge that these Terms are between only DailyPay and you, and not with Apple; and that, as between DailyPay and Apple, DailyPay, not Apple, is solely responsible for the Apple-Enabled Software and its content.
- You may not use the Apple-Enabled Software in any way that violates, is inconsistent with, or conflicts with the Usage Rules for the Apple-Enabled Software or the Apple App Store Terms of Service.
- Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS product that you own or control, as permitted by the Usage Rules for the Apple-Enabled Software or the Apple App Store Terms of Service.
- Apple has no obligation to support or maintain the Apple-Enabled Software.
- Apple is not responsible for any product warranties, whether express or implied by law. If any Apple-Enabled Software fails to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs, or expenses attributable to any such failure to conform to any warranty, which will be DailyPay’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
- DailyPay and you acknowledge that DailyPay, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession or use of that Apple-Enabled Software, including: (A) product liability claims; (B) claims that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (C) claims arising under consumer protection or similar legislation.
- If a third-party claims that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between DailyPay and Apple, DailyPay, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
- You represent and warrant that: (A) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (B) you are not listed on any U.S. Government list of prohibited or restricted parties.
- If you have any questions, complaints, or claims with respect to the Apple-Enabled Software, they should be directed to DailyPay as follows:
55 Broad Street, 29th Floor, New York, New York 10001
DailyPay and you acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms with respect to the Apple-Enabled Software, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you with respect to the Apple-Enabled Software as a third-party beneficiary.
8. Intellectual Property
The Site, Site Information, Services, and all other information and intellectual property referenced on or related to the Site and Services, including patents, copyrights, logos, computer code, trademarks, and trade secrets, are owned by DailyPay or third parties and are protected by law. All other applicable ownership rights are reserved, and you will abide by all laws applicable to them. By making the Site, Site Information, and Services available, DailyPay does not grant any licenses to or transfer any right, interest, or title in any intellectual property rights to you or any other person.
YOU AGREE TO INDEMNIFY DAILYPAY AND ITS AFFILIATES, AND EACH OF THEIR OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, THIRD-PARTY SERVICE PROVIDERS, SUPPLIERS, AND THIRD PARTIES MENTIONED ON THE SITE, AND TO DEFEND AND HOLD EACH OF THEM HARMLESS, FROM ANY AND ALL CLAIMS, ACTIONS, PROCEEDINGS, JUDGMENTS, SETTLEMENTS, LIABILITIES, DAMAGES, FINES, PENALTIES, COSTS, AND FEES (INCLUDING ATTORNEY’S FEES) (COLLECTIVELY, “CLAIMS”) WHICH MAY ARISE FROM OR RELATE TO YOUR USE OF THE SITE, SITE INFORMATION, OR SERVICES; USE OF YOUR DAILYPAY ACCOUNT; OR FROM YOUR BREACH OF THESE TERMS OR ANY ADDITIONAL TERMS. WE RESERVE THE RIGHT, IN OUR SOLE DISCRETION, TO ASSUME THE EXCLUSIVE CONTROL OF THE DEFENSE OF ANY SUCH CLAIM.
10. Site Security
We maintain physical, electronic, and procedural safeguards reasonably designed to protect our Site, Site Information, Services, and systems. We make no guaranty that our Site, Site Information, Services, systems, or any related data transmissions are absolutely secure.
11. Governing Law
THE LAW, INCLUDING THE STATUTES OF LIMITATION, OF THE STATE OF NEW YORK WILL GOVERN THESE TERMS AND THE ADDITIONAL TERMS, THE INTERPRETATION AND ENFORCEMENT OF THESE TERMS, AND ANY CLAIM OR CAUSE OF ACTION (IN LAW OR EQUITY), CONTROVERSY, OR DISPUTE ARISING OUT OF OR RELATED TO THEM OR THEIR NEGOTIATION, OR EXECUTION OR PERFORMANCE OF THE TERMS, SITE OR SERVICES, WHETHER BASED ON CONTRACT, TORT, STATUTORY OR OTHER LAW, IN EACH CASE WITHOUT GIVING EFFECT TO ANY CONFLICTS-OF-LAW OR OTHER PRINCIPLE REQUIRING THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.
13. Export Control.
You may not use, export, import, or transfer the Site, Site Information, or Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Site, Site Information, or Services, and any other applicable laws. In particular, but without limitation, the Site, Site Information, and Services may not be exported or re-exported (A) into any U.S. embargoed countries, or (B) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Site, Site Information, or Services, you represent and warrant that (A) you are not located in a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country and (B) you are not listed on any U.S. government list of prohibited or restricted parties. You also will not use the Site, Site Information, or Services for any purpose prohibited by U.S. law, including the development, design, manufacture, or production of missiles, nuclear, chemical, or biological weapons. You acknowledge and agree that products, services, or technology provided by DailyPay are subject to the export control laws and regulations of the U.S. You will comply with these laws and regulations and will not, without prior U.S. government authorization, export, re-export, or transfer DailyPay products, services, or technology, either directly or indirectly, to any country or person in violation of such laws and regulations.
14. Complaints by California Consumers
You may report complaints about us to the Correspondence Unit of the California Department of Consumer Affairs by writing at Division of Programs and Policy Review, Consumer Information Center—Correspondence Unit, 1625 N. Market Blvd., Ste N-112, Sacramento, CA 95834-1924, or by contacting them at www.dca.ca.gov or calling (800) 952-5210.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and DailyPay as a result of these Terms or any Additional Terms, or your use of the Site or Services. You may not assign any part of your rights or duties under these Terms or any Additional Terms 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 duties or rights of either party will be effective unless in writing, executed by the party against whom it is being enforced. If any term of these Terms, the Program Terms, or any Additional Terms is held invalid, then that term will be deemed severable from the remaining terms and in no way affects the validity or enforceability of the remaining terms. These Terms and any Additional Terms, including the Program Terms, are the final, complete, and exclusive agreement of the parties with respect to the subject matter they govern and supersede and merge all prior discussions between the parties with respect to such subject matter; and nothing on the Site should be construed to alter such agreement. The titles in these Terms are used for convenience only and are not to be considered in construing them.
16. Agreement to Do Business Electronically and How to Provide Notice
You agree to conduct business with us electronically, including the execution of these Terms and any Additional Terms, all of which may be executed by electronic signature, including an electronic sound, symbol, or process, attached to or logically associated with the agreement.
You agree that we may provide you notices, disclosures, electronic records, and other communications by email, by posting in your DailyPay account, by SMS message (including text message), by regular mail, or any other method. You may provide us notice through the Site or by email to: firstname.lastname@example.org.
We will use the contact information we have on file for you to notify you, and it is your responsibility to notify us immediately of any changes to your contact information. If you wish to update your contact information, you may do so through the Site by changing your DailyPay account settings. If you have any difficulty doing so, you may email us a request for assistance at: email@example.com.
You consent to be contacted by us or our representatives at any telephone number or electronic address you provide or at which you may be reached. You consent to receive SMS messages, calls, and messages (including pre-recorded, artificial voice, and autodialed or automatically texted) from us or our representatives at the numbers you have provided to us, or numbers we can reasonably associate with you (through skip trace, caller ID capture, or other means), with information or questions relating to you or the Services. Automated messages may be played when the telephone is answered, whether by you or someone else. In the event that a representative calls, he or she may also leave a message on your answering machine or voicemail, or send a message by text. Calls may be recorded.
To unsubscribe from text messages, reply STOP to any text message you receive from us. If you unsubscribe, we may restrict or terminate your access to the Services. You consent that following a request to unsubscribe from text messages, you may receive one final text message from us confirming your request and/or providing an alternative to access your DailyPay account.
You also agree to receive alerts about your activity, balances, payments, suspicious activities, and other matters involving your use of the Site or the Services through push notifications to your smartphone or other device. Receipt of push notifications may be delayed or prevented by factors beyond our control, including those affecting your internet/phone provider. We are not liable for losses or damages arising from non-delivery, delayed delivery, or the erroneous delivery of any push notification; inaccurate push notification content; or your use or reliance on the content of any push notification for any purposes. Each push notification may not be encrypted, and may include your name and information pertaining to your DailyPay account or use of the Site or the Services. We may terminate your use of push notifications without notice. You may choose to discontinue receiving push notifications by updating your preferences on your smartphone or other device. You acknowledge and agree that standard call, message, and data rates charged by your carrier apply to all communications by or with us and are your liability.
You agree that all agreements, notices, disclosures, and other communications that we provide or make available to you electronically or post on the Site satisfy any legal requirement that a communication be in writing, if such a requirement is applicable, and 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 by law.
To request paper copies of any electronic communications, please send an email to: firstname.lastname@example.org. We may charge you for the shipping costs we incur in for providing paper copies. You may withdraw your consent to receiving electronic communications at any time by emailing us at: email@example.com. If you withdraw your consent to receiving electronic communications, the legal effectiveness, validity, and enforceability of all agreed to terms and conditions and any prior communications will remain in effect. Any withdrawal of consent to receiving electronic communications will be effective only after we have a reasonable period of time to process your withdrawal request. If you withdraw your consent to receiving electronic communications, we may immediately delay, suspend, or terminate your access to and participation in your DailyPay account, the Site, and Services.
17. Arbitration; Jury Trial Waiver; Class Action Waiver
Please read the following arbitration agreement in this Section 17 (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with us and limits the ways you can seek relief from us.
A. Applicability of Arbitration Agreement. You agree that any dispute, controversy or claim arising out of or relating in any way to your access or use of the Site, Site Information, or Services, to your use of any of the Services provided by DailyPay, to any aspect of your relationship with DailyPay, or to the interpretation, scope, or application of this Arbitration Agreement (“Covered Claims”) shall be resolved by binding arbitration, rather than in court, except that: you or DailyPay may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement applies, without limitation, to all claims that arose or were asserted before the effective date of these Terms or to any prior version of these Terms. You also agree to arbitrate any Covered Claims against your employer in accordance with this Arbitration Agreement and that your employer may enforce the terms of this Arbitration Agreement against you and compel arbitration of any Covered Claims.
An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
B. Arbitration Rules and Forum. The Federal Arbitration Act and federal arbitration law govern this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent: Corporation Service Company, 251 Little Falls Drive, Wilmington, Delaware 19808. A copy of the letter must also be sent to your local JAMS Resource Center, which can be found at http://www.jamsadr.com/locations/.
The arbitration shall be administered by JAMS an established alternative dispute resolution provider, and shall be conducted by a sole arbitrator appointed by JAMS, who shall be independent, neutral and impartial. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be administered by JAMS pursuant to its Streamlined Arbitration Rules & Procedures as then in effect (currently available at https://www.jamsadr.com/rules-streamlined-arbitration. Disputes involving claims and counterclaims of $250,000 or more shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules & Procedures as then in effect (currently available at https://www.jamsadr.com/rules-comprehensive-arbitration/). JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person. If you are a Business, the seat of the arbitration proceedings shall be in New York, New York or at another mutually agreed location. If you are not a Business, the location of the arbitration proceedings shall be no more than 45 miles from where you are domiciled A Business is a person who has used or is using the Site, Site Information, or Services primarily for other than personal, family or household purposes. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
If JAMS is not available to arbitrate, the parties shall select an alternative arbitral institution to administer the arbitration, and the provisions of this Section 17.B will be applied to the fullest extent as if JAMS were available to arbitrate.
C. Authority of Arbitrator. The arbitrator shall have the authority to (i) determine the scope, applicability and enforceability of this Arbitration Agreement and (ii) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration shall not be consolidated with any other arbitration or joined with any other arbitrations, cases or parties.
In any arbitration, the parties shall have the right to conduct adequate civil discovery, bring dispositive motions, and present witnesses and evidence as needed to present their cases and defenses, and any disputes in this regard shall be resolved by the arbitrator. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
D. Waiver of Jury Trial. YOU AND DAILYPAY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and DailyPay are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 17.A.
E. Waiver of Class and Collective Action or Other Non-Individualized Relief. YOU AND DAILYPAY AGREE TO BRING ANY CLAIMS IN THE ARBITRATION ON AN INDIVIDUAL BASIS ONLY, AND NOT ON A CLASS OR COLLECTIVE BASIS. ACCORDINGLY, ALL CLAIMS, CONTROVERSIES AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS; ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought in (i) if you are a Business, the state or federal courts located in New York County in the State of New York; or (ii) if you are not a Business, the state or federal courts located in your state of domicile and having jurisdiction over the severed claim, or (iii) at another mutually agreed location. All other claims shall be arbitrated.
F. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out within 30 days after first becoming subject to this Arbitration Agreement to: firstname.lastname@example.org. Your notice must include your name and address, the email address you used to set up your DailyPay account, and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
G. Severability. Except as provided in Section 17.E, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts will be of no force and effect and will be severed, and the remainder of the Arbitration Agreement will continue in full force and effect.
H. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with DailyPay.
I. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if DailyPay makes any future material change to this Arbitration Agreement, you may reject that change within 30 days of such change becoming effective by writing DailyPay at the following address: 55 Broad Street, 29th Floor, New York, New York 10001.
Last updated: October 28, 2019
4. Information Collected. We do not currently require you to provide Personal Information in order to have access to general information available on the Site. But, we do receive and/or collect Personal Information from you in the following ways:
4.1. Account. In order to utilize the Service, you are required to create an account (“Account”). We may offer different options to create an Account, including:
Online Registration Form: You may choose to complete and submit an online registration form. You will be asked to provide us with an email address, mobile phone number, and a password that you will use for your Account.
Regardless of which method you choose to register your Account, we may send an email or text message to your nominated email address, mobile phone number, or to the email address that you have designated in your Third Party Account, to instruct you how to confirm your registration.
4.2. ‘Contact Us’ Information. If you send us a ‘Contact Us’ request, whether by submitting an online form, direct email to a DailyPay email address, or text message to our company number that we make available on the Site, you may be required to provide us with certain information such as your name and email address.
4.3. Log Files. We may make use of log files. The information inside the log files includes internet protocol (IP) addresses, type of browser, Internet Service Provider (ISP), date/time stamp, referring/exit pages, clicked pages and any other information your browser may send to us. We may use such information to analyze trends, administer the Services, track user’s movement around the Services, and gather demographic information.
4.4. Cookies and Other Tracking Technologies. Some of our Site and Service pages may utilize “cookies” and other tracking technologies in order for us to provide our Services and present you with information that is customized for you. A “cookie” is a small text file that may be used, for example, to collect information about Site and Service activity. Certain cookies and other technologies may serve to recall Personal Information, such as an IP address, previously indicated by a user. Most browsers allow you to control cookies, including whether or not to accept them and how to remove them. You may set most browsers to notify you if you receive a cookie, or you may choose to block cookies with your browser. This site makes use of a service provided by Google (“Google Analytics”) to allow us to learn more about how our users utilize our website. This information is anonymous, is restricted to your usage of our site, and cannot be connected with any personal information stored in your account. If you would prefer not to share this information with us, you can disable cookies on your browsers settings page.
5. Use of Personal Information. If you submit or we collect Personal Information through the Services, then such Personal Information may be used by us in the following ways:
5.1. We may use your Personal Information to provide and improve our Services, to contact you in connection with the Services and certain programs or offerings that you may have registered for, and to identify and authenticate your access to the parts of the Services that you are authorized to access.
5.2. We may use your designated email address or mobile phone number to: (i) send you updates or news regarding the Services and our products; and/or (ii) respond to a “Contact Us” or administrative request (for example, to change your password).
5.4. We may disclose your Personal Information or any information you submitted via usage of the Service if we have a good faith belief that disclosure of such information is helpful or reasonably necessary to: (i) to administer the service; (ii) comply with any applicable law, regulation, legal process or governmental request; (iii) enforce our Terms, including investigations of potential violations thereof; (iv) detect, prevent, or otherwise address fraud or security issues; or (v) protect against harm to the rights, property or safety of DailyPay, our users, yourself or the public.
6. Use of Anonymous Information. We may use Anonymous Information (as defined below) or disclose it to third party service providers in order to improve our Services and enhance your experience with the Services. We may also disclose Anonymous Information (with or without compensation) to third parties, including advertisers and partners. “Anonymous Information” means information which does not enable identification of an individual user, such as aggregated information about the use of our Services.
7. Opting Out. You may choose not to receive future promotional, advertising, or other Services-related emails or text messages from us by selecting an unsubscribe link at the bottom of such emails or by texting “STOP” to opt out of such text messages. Or controlling your notifications in your account settings. If you opt out of receiving the foregoing emails or text messages, we may still send you a response to any “Contact Us” request as well as administrative emails (for example, in connection with a password reset request, an email/text message verification, or a payment-related email/text message) that are necessary to facilitate your use of the Services.
8. Choice|. At all times, you may choose whether or not to provide or disclose Personal Information. If you choose not to provide mandatory Personal Information, you may still visit parts of the Services, but you may be unable to access certain options, programs, offers, and services that involve our interaction with you.
9. Access/Accuracy|. To the extent that you do provide us with Personal Information, we wish to maintain accurate Personal Information. You may use the tools that we make available on the Service to remove or modify certain information in your Account .
11. Children’s Privacy|. The Services are not structured to attract children under the age of 13 years. Accordingly, we do not intend to collect Personal Information from anyone we know to be under 13 years. If we learn that we have collected Personal Information from a child under 13 years, we will delete that information as quickly as possible. If you believe that we might have any such information, please contact us.
12. Security|. The security of Personal Information is important to us. We follow generally accepted industry standards, including the use of appropriate administrative, physical and technical safeguards, to protect the Personal Information submitted to us. However, no method of transmission over the Internet, or method of electronic storage, is 100% secure. Therefore, while we strive to use commercially acceptable means to protect your Personal Information, we cannot guarantee its absolute security or confidentiality.
13. Merger, Sale or Bankruptcy|. In the event that we are acquired by or merged with a third party entity, or in the event of bankruptcy or a comparable event, we reserve the right to transfer or assign Personal Information in connection with the foregoing events.
Last updated: October 2, 2018
DAILYPAY TERMS AND CONDITIONS
LAST UPDATED: November 1, 2019
THESE TERMS AND CONDITIONS (THE “TERMS”) GOVERN THE USE OF AND ACCESS TO THE SOFTWARE-AS-A-SERVICE WAGE MANAGEMENT AND PAYMENT SERVICE (THE “SERVICE”) LOCATED AT WWW.DAILYPAY.COM AND MADE AVAILABLE BY DAILYPAY, INC. (“DAILYPAY”). BY EXECUTING AN ORDER REFERENCING THESE TERMS, YOU (THE “COMPANY”) AGREE TO BE BOUND BY THESE TERMS AND THE ORDER (COLLECTIVELY, THE “AGREEMENT”).
a) Grant. Subject to the terms and conditions of the Agreement, DailyPay grants Company a non-exclusive, non-transferable, non-sublicensable (except as set forth herein), limited license during the Term (the “License”), to access and use the Service for the sole purpose of providing Company employees and contractors access to accrued, unpaid wages prior to Company’s regularly scheduled payroll processing (“Wages”). Each employee who elects to use the Service to access Wages is a “User”. The Service includes (i) any application program interfaces (“APIs”) provided by DailyPay for Company and / or Users to access the Service, if applicable, and (ii) any modifications, improvements, bug fixes, or other new versions of the Service made available to all licensees of the Service at no additional cost (each, an “Update”). Updates are applied to the Service automatically. The License includes the right to make, distribute and use a reasonable number of copies of any written or online (x) descriptions of the functionality, technical requirements, or use of the Service (collectively, “Documentation”), and (y) marketing materials provided by DailyPay (“Materials”), in each case for Company’s internal business purposes, including promoting the Service to Users.
b) Restrictions. The Service is licensed only for Company’s internal use only in connection with making Wages available to Users. Except as explicitly permitted in the Agreement, Company shall not, directly or indirectly: (i) modify or create derivative works of the Service; (ii) decompile, reverse engineer, or otherwise translate any portion of the Service into human-readable form (except to the extent that this subsection (ii) is limited by applicable law); (iii) rent, lease, share, distribute, sell or otherwise make the Service available to any third party, including on a time sharing, service bureau, or similar basis; (iv) remove, alter or deface proprietary notices, labels or marks in the Service, Documentation, or Materials; (v) disclose the results of testing or benchmarking of the Service; (vi) circumvent or disable the Service’s copyright protection or license management mechanisms; (vii) use the Service in violation of any applicable law or regulation or to violate the rights of any third party; or (viii) attempt to do any of the foregoing. Company is responsible for notifying Users of their required compliance with these restrictions and this Agreement.
c) Additional Features. DailyPay may make new features or modules for the Service available for an additional fee during the Term (each such offering, an “Add-On”). Add-Ons are not required for the proper functioning of the Service and will be made available to Company when made available to other DailyPay customers.
2. USE OF THE SERVICE
a) Company Responsibilities Company shall promote the availability of the Service to employees as set forth in the “Rollout Plan” in the Order, if any, and by, at a minimum, featuring DailyPay no less prominently than other benefits offered by Company in all information provided to employees and prospects about Company benefits.
i) Company shall designate at least one individual at the Corporate office responsible for the administration of the Service for Company and will have access to all related functions of the Service ( “Administrator”). Administrator will participate in a training call/webinar about DailyPay in connection with implementation of the Service.
ii) For each eligible Company employee as of the Effective Date, and for all new, eligible hires during the Term, Company will create a User profile within the Service (or, if the Service does not allow Administrators to do so, provide information reasonably requested by DailyPay to establish such profiles).
iii) If Company makes User, Wage, payroll, or other information available to DailyPay through an API to the Service (a “Company API”), Company shall secure any rights necessary for DailyPay to access and use the Company API at no cost to DailyPay.
iv) Company shall provide DailyPay with current, accurate information about Wages at the times and in the manner agreed by the Parties. Wage information may be made available through a Company API.
v) Company shall ensure that payment information for Users in Company records is updated timely and in accordance with the procedures outlined during the implementation stage to reflect the DailyPay account established for each User in connection with this Agreement (the “DailyPay User Account”). Where such information must be updated by Users, Company is responsible for notifying Users to update such information in connection with registering for the Service. Failure to comply with providing accurate and timely records may result in an overpayment to the employee and Company may be held liable for such overpayment.
vi) Company shall make all payroll payments (including off-cycle and termination payments) for Users to the DailyPay User Account in accordance with Company’s regular payroll timeline (but in no event less frequently than monthly).
vii) Company shall provide a net earnings file in accordance with the procedures outlined during the implementation stage to enable DailyPay to pre-fund employee accounts on scheduled payday. Company acknowledges that if the net earnings file is not received in a timely basis it will cause delays in employees receiving their payroll payments.
viii) Company shall immediately deactivate the account of any User being terminated and if such User is required to receive a paper check as part of termination, DailyPay will report any applicable adjustments for Wages paid to such User to apply to the paper check and will invoice Company for such Wages (and any associated charges payable by the User) at the end of the pay period. Company will apply the adjustment to the paper check and will pay the invoice within thirty (30) days of receipt.
ix) Company shall use commercially reasonable efforts to prevent unauthorized access to or use of the Service and notify DailyPay immediately of any such unauthorized access or use of which Company becomes aware.
x) In addition to the restrictions set forth in Section 1(b), Company will not (A) interfere with or disrupt the integrity or performance of the Service, (B) attempt to gain unauthorized access to the Service or its related systems or networks, (C) interfere with or disrupt the Service, or attempt to prove, scan, or test for vulnerabilities in the Service, or (D) use the Service in a way that imposes, or may impose, in DailyPay’s sole discretion, an unreasonable or disproportionately large load on the Service.
xi) Company is responsible for any on-site network or internet connectivity required to access the Service over the Internet. Company consents to the processing and storage of Company Data (as defined below) on hardware owned or controlled by third parties (i.e., AWS).
xii) Company is responsible for providing gross earnings data in accordance with DailyPay practices communicated to Company during the implementation stage.
xiii) In the event there is a remaining negative balance in the User’s DailyPay Account after payday that is due to a failure on the part of the Company to complete one of the Company Responsibilities, the Company will reimburse DailyPay within 15 business days of receiving notice from DailyPay that it is not able to recoup the amounts owed.
xiv) Company will, upon DailyPay’s request in connection with any renewal of the Term or as may be requested by DailyPay from time to time, provide DailyPay with an updated credit application and supporting documentation, including but not limited to, financial statements sufficient to allow DailyPay to ensure Company continues to meet DailyPay’s credit requirements. Failure to provide such information will constitute a breach of this Agreement.
b) DailyPay Responsibilities.
xv) DailyPay shall provide the Service in accordance with all applicable laws and government regulations.
xvi) DailyPay shall use commercially reasonable efforts to make the Service available at all times, except for planned downtime and any unavailability caused by Force Majeure Events (as defined below).
xvii) DailyPay shall provide Company with support for Administrators and Users as set forth in the Order.
xviii) DailyPay shall conduct a training call / webinar for Administrators as part of implementation of the Service.
xix) DailyPay shall maintain appropriate administrative, technical and physical safeguards to protect the security, confidentiality and integrity of the Service and any Company Data stored on, or accessible via, the Service.
xx) DailyPay will, either through the Service or otherwise, provide Company with information regarding Users for whom DailyPay has not received Wages from Company, and the status of User accounts (including when any User account is terminated).
xxi) DailyPay shall distribute payroll payments received by Company pursuant to Section 2(a)(vi) to Users net of any prepaid Wages and service fees owed to DailyPay by such Users.
xxii) DailyPay may suspend access to the Service for any User if (A) Company fails to make payroll payments for such User to the DailyPay User Account pursuant to Section 2(a)(vi), or (B) in the sole judgement of DailyPay, said User presents a risk of fraud or unauthorized use.
a) Service. Materials and Documentation. Except for the limited rights granted in Section 1(a), DailyPay retains all right, title and interest, including all intellectual property rights, in and to the Service, Documentation, and Materials. DAILYPAY EXPRESSLY RESERVES ALL RIGHTS IN AND TO THE SERVICE, DOCUMENTATION AND MATERIALS NOT EXPRESSLY GRANTED HEREUNDER.
b) Company API. Company grants DailyPay a non-exclusive, non-transferable (except as set forth herein), worldwide, royalty-free license during the Term (as defined below) to access and use the Company API (if applicable) for the limited purposes of providing the Service to Company and making Wages available to Users.
c) Company Data. Company grants DailyPay a non-exclusive, non-transferable (except as set forth herein), worldwide, royalty-free license during the Term to use any information made available through the Service or otherwise provided to DailyPay in connection with this Agreement by Company, Users other Company personnel, or any third parties acting on Company’s behalf (collectively, “Company Data”) for the purpose of providing the Service. Company represents and warrants that: (i) it owns or has the right to make Company Data available to DailyPay, (ii) the posting and use of Company Data on or through the Service will not (A) violate the intellectual property, privacy, publicity, or other rights of any person or (B) breach any contract between Company and a third party; (iii) the Company Data is accurate, and (iv) to the extent Company Data includes information that, alone or in combination with other information, can be used to identify an individual person (“Personal Data”), Company does and shall comply with all applicable laws and regulations involving the use, protection, and maintenance of such Personal Data, and will have obtained all consents required to make such Personal Data available to DailyPay.
d) Usage Information. DailyPay owns all data (i) regarding installation, registration, and use of the Service; and (ii) related to performance of the Service, including response times, load averages, usage statistics, activity logs, (collectively, “Performance Data”). Performance Data does not include any Personal Data or Company-specific output resulting from the use of the Service (“Company Output”), but may include aggregated or anonymized information derived from Company Output. Performance Data may be used to contribute to analytical models used by DailyPay, to monitor and improve the Service, and to develop additional services and offerings.
e) Open Source Software. Certain elements of the Service may be subject to “open source” or “free software licenses” (“OSS”) owned by third parties. OSS is not licensed under Section 1. Instead, each item of OSS is licensed under the terms of the end-user license that accompanies such OSS. Nothing in this Agreement limits Company’s right under, or grants Company rights that supersede, the terms and conditions of the applicable OSS end-user license. If required by any license for particular OSS, DailyPay will make such OSS available by written request to the address set forth in the Order.
f) Feedback. Company hereby grants DailyPay a worldwide, perpetual, irrevocable, royalty-free right and license to use any ideas, suggestions, comments, recommendations, enhancement requests or other input provided by Company, its employees or agents, or Users about the Service to DailyPay in any form in any way whatsoever.
a) Company Fees. Company shall pay DailyPay any amounts set forth on the Order (the “Fees”). DailyPay may modify the Fees in connection with any renewal of the Term, provided that DailyPay provides Company with notice of such revised Fees at least thirty (30) days prior to the renewal date. All Fees are payable in advance (annually, in the case of recurring Fees), and due within thirty (30) days of receipt of an invoice. Except as otherwise set forth herein, Fees are non-cancelable and non-refundable. As of the effective date of this Agreement, fees for Company have been waived. Notwithstanding the foregoing, if Company (during initial or renewal term) changes payroll system and/or similar change which impacts the DailyPay Service, DailyPay shall be entitled to fees pursuant to this section herein.
b) User Fees. DailyPay shall charge Users the fees set forth in the Order Form or as otherwise agreed in writing by the parties, or DailyPay’s then-current rates (which may be changed from time to time) if no separate fee agreement is in place with Company for each Wage payment made via the Service (the “User Fee”). The User Fee is subject to the terms of the agreement entered into by Users to access the Service for the payment of Wages (the User Program Terms “Program Terms”). Users must enter into Program Terms in order to access the Service and receive Wages from DailyPay.
c) Late Payments. Overdue Fees (including if Company fails to fully fund the DailyPay User Account) shall accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, if less, from the date such payment was due until the date paid. DailyPay may also suspend access to the Service if Fees remain unpaid more than thirty (30) days after they were due. Notwithstanding the foregoing, if Company fails to fund the payroll for Users on a timely basis, DailyPay may immediately suspend the Service.
d) Taxes. Company shall be responsible for payment of all sales, use, property, value-added, payroll withholding, or other federal, state or local taxes arising from or related to the Service (“Buyer Taxes”), except for taxes based solely on DailyPay’s net income. If DailyPay is required to pay any such taxes based on the licenses granted in this Agreement or on Company’s use of the Service, then such taxes will be billed to and paid by Company.
5. CONFIDENTIAL INFORMATION
a) Definition. “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or the equivalent or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, Confidential Information does not include information that (i) is or becomes generally known to the public without Receiving Party’s breach, (ii) was known to the Receiving Party prior to its disclosure, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. The occurrence of a situation described in subsections (i) through (iv) will not reduce or limit the Receiving Party’s obligation to protect Personal Data in compliance with all applicable laws and regulations.
b) Protection. The Receiving Party shall protect the Disclosing Party’s Confidential Information with the same degree of care that it uses to protect its own information of like kind (but in no event with less than reasonable care). The Receiving Party shall only use Confidential Information as required to fulfil its obligations under this Agreement, and (ii) unless authorized by the Disclosing Party in writing, limit access to Confidential Information to those of its and its affiliates’ employees, contractors and agents who need such access in connection with this Agreement and who are bound to confidentiality obligations no less stringent than those in this Section 5. The terms of this Agreement are Confidential Information of the Parties; its existence is not.
c) Compelled Disclosure. The Receiving Party may disclose the Disclosing Party’s Confidential Information if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest or limit the scope of the disclosure.
6. TERM AND TERMINATION
a) Term. This Agreement shall become effective on the Effective Date and will continue for the “Initial Term” indicated on the Order (or one (1) year if no Initial Term is defined). Thereafter, the Agreement will automatically renew for successive periods equal to the length of the Initial Term (each, a “Renewal Term,” and, all such Renewal Terms with the Initial Term, the “Term”), unless either Party notifies the other in writing of its intent not to renew at least thirty (30) days prior to the expiration of the then-current Term, or the Agreement is terminated pursuant to 6(b).
b) Termination for Material Breach. If either Party fails to comply with any material provision of the Agreement, the other Party may terminate the Agreement upon thirty (30) days written notice unless the breach is cured within such time. In addition, DailyPay may terminate this Agreement without opportunity for Company to cure if Company fails to timely fund any two (2) payroll payments in a rolling, twelve (12) month period.
c) Termination for Insolvency and Related Events. This Agreement may be terminated immediately by either Party upon written notice to the other Party (i) upon the institution by the other Party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of such other Party’s debts (or when such proceedings are instituted by a third party and not dismissed within twenty (20) days), (ii) upon the other Party’s making an assignment for the benefit of creditors, or (iii) upon the other Party’s dissolution or ceasing to do business.
d) Effects of Termination. Upon the expiration or termination of the Agreement, (i) Company shall pay DailyPay for any Wages paid to Users by DailyPay but not funded to the DailyPay User Account by Company as of the date of termination or expiration within fifteen (15) days of such date; (ii) all rights and licenses granted by each Party hereunder shall terminate; (iii) Company shall immediately discontinue all use of the Service and remove or destroy any copies of the Documentation and Materials in its possession; (iv) DailyPay will retain all Company Data for applicable audit and compliance retention periods, subject to the term of Section 5; (v) each Party shall return (or destroy, at the Disclosing Party’s option) all other Confidential Information of the other Party in its possession; and (vi) Sections 3, 5, 6(d), 8, 9, 10(a), 10(c), 10(d), and 10(j) will survive in accordance with their terms.
7. WARRANTIES AND DISCLAIMER
a) Mutual Representations and Warranties. Each Party represents and warrants that it has the right to enter into and perform its obligations under this Agreement, and that such performance does not and will not conflict with any other agreement of such Party or any judgment, order, or decree by which it is bound. Each Party shall comply with all laws applicable to its performance under this Agreement, including those relating to privacy and the protection of Personal Data and credit information.
b) Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 7(a), NEITHER PARTY MAKES, AND EACH PARTY EXPRESSLY DISCLAIMS, ANY REPRESENTATION OR WARRANTY IN CONNECTION WITH THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, DAILYPAY MAKES THE SERVICE AVAILABLE ON AN “AS IS” BASIS.
a) By DailyPay.
i) DailyPay will indemnify and hold harmless (including payment of reasonable attorneys’ fees and court costs) Company and its officers, directors and employees against any third-party claim alleging that the Service infringes the intellectual property rights of such third party, except to the extent the alleged infringement arises out of (A) Company’s use of the Service in violation of the Agreement, or (B) Company Data.
ii) If the Service or any element thereof is (or in DailyPay’s judgment) is likely to be found to infringe any third-party intellectual property rights, DailyPay, in its sole discretion and at its cost and expense, will either (A) procure the right for Company to continue to use the Service; or (B) modify the Service to be non-infringing without materially diminishing its functionality. If neither (A) nor (B) is commercially reasonable, DailyPay may terminate the Agreement by giving Company at least thirty (30) days’ prior written notice and, as Company’s sole and exclusive remedy therefor, refund Company any prepaid Fees attributable to the terminated portion of the Agreement.
iii) The remedies in this Section 8(a) are Company’s sole remedy, and DailyPay’s entire liability, with respect to any third-party infringement claim.
b) By Company. Company will indemnify and hold harmless (including payment of reasonable attorneys’ fees and court costs) DailyPay and its officers, directors and employees against any third party (including a User) claim arising out of or related to (i) Company’s failure to comply with applicable law, (ii) DailyPay’s use of any Company Data (including late or erroneous payments of Wages resulting from inaccuracies in the Company Data, or Company’s failure to provide Company Data necessary for DailyPay to make payments of Wages to Users), or (iii) the amount of Wages paid to a User.
c) Procedures. The obligations in this Section 8 are contingent on the indemnified Party (i) promptly notifying the responsible Party of any indemnifiable claim; (ii) granting the responsible Party sole control over the defense and/or settlement of the claim (provided that a settlement may not impose costs or liability on the indemnified Party without its consent); and (iii) providing reasonable assistance to the Responsible Party at the Responsible Party’s expense.
9. LIMITATION OF LIABILITY
EXCEPT FOR A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR INDEMNIFICATION OBLIGATIONS UNDER SECTIONS 8, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR (A) LOST PROFITS, LOSS OF DATA OR ANY OTHER CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ASSERTED, ARISING OUT OF THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) DAMAGES EXCEEDING, IN THE AGGREGATE, THE TOTAL AMOUNT PAID TO DAILYPAY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE. THIS LIMITATION IS CUMULATIVE AND THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIABILITY LIMITATION. COMPANY ACKNOWLEDGES THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THE AGREEMENT.
10. GOVERNING LAW, DISPUTE RESOLUTION
a) Governing Law. This Agreement, including its formation, and the rights of the Parties thereunder shall be governed by the laws of the State of New York, without giving effect to conflicts of laws principles that would require a different result. The Parties acknowledge that this Agreement evidences interstate commerce. Notwithstanding the preceding provision with respect to the applicable substantive law, any arbitration conducted pursuant to this Agreement shall be governed by the Federal Arbitration Act, 9 U.S.C. § 1, et. seq.
b) Arbitration. Any dispute, controversy or claim arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope, applicability and enforceability of this agreement to arbitrate, shall be finally settled by arbitration before a sole arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The seat, or legal place, of arbitration shall be New York City, New York. Judgment on the award may be entered in any court of competent jurisdiction.
i) Within 15 days after the commencement of arbitration, the Parties shall jointly select the sole arbitrator. If the Parties are unable or fail to select the arbitrator within the allotted time, that arbitrator shall be appointed by JAMS in accordance with its rules. The arbitrator shall serve as a neutral, independent and impartial arbitrator.
ii) The arbitrator shall award to the prevailing Party, if any, the costs, expenses and attorneys’ fees reasonably incurred in connection with the arbitration.
iii) The Parties shall maintain the confidential nature of the arbitration proceeding, all rulings and the award, including the hearing, unless otherwise required by law or judicial decision except as may be necessary to prepare for or conduct the arbitration, or as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or as the Parties otherwise consent.
c) Waiver: Class and Collective Actions. The Parties agree to bring any dispute in arbitration on an individual basis only, and not on a class or collective action basis. There shall be no right or any authority for any dispute to be brought, heard or arbitrated as a class or collective action. The class and collective action waiver shall not be severable from this arbitration agreement in any case in which (1) the dispute is filed as a class or collective action and (2) there is a final judicial determination that the class and collective action waiver is invalid, unenforceable, unconscionable, void or voidable. In such instances, the class action shall be brought exclusively in the state or federal courts located in New York County, the State of New York.
d) Waiver: Jury Trial. The Parties agree to waive any Constitutional and statutory rights to sue in court and have a trial in front of a jury.
e) Remedies; Injunctive Relief. All rights and remedies of the Parties under this Agreement are cumulative and the exercise of one remedy will not exclude election of other remedies. A Party’s breach or threatened breach of any of Sections 1(b), 2(a)(vii), 3, or 5 of this Agreement may cause irreparable injury that may not be compensated by monetary damages. Accordingly, notwithstanding Sections 10(a) and 10(b) and in addition to any other remedies available to it, a Party may seek interim injunctive or other interim equitable relief in any court of competent jurisdiction for such breach or threatened breach.
a) Insurance. At all times during the Term, DailyPay will maintain Commercial General Liability insurance in the amounts of $1,000,000 per claim and $2,000,000 in aggregate.
b) Notices. Any notice, consent, or other communication intended to have legal effect hereunder will be in writing, and will be given personally or sent via overnight delivery requiring signature upon receipt to the relevant Party at the address for such Party indicated on the Order (or such other address as provided by that Party). Notices will be deemed given when delivered or refused. Operational communications, such as changing a Party’s notice address, may be given via email.
c) Attribution. DailyPay may indicate that Company is a customer on DailyPay’s website and standard marketing materials. Any such attribution will be consistent with Company’s style guidelines or requirements as communicated to DailyPay. The Parties may agree to additional marketing efforts (i.e., case studies, events) in writing.
d) Relationship of the Parties. The Parties are independent contractors and nothing in this Agreement will be construed as creating a partnership or joint venture of any kind between the parties. Neither Party will have the authority or power to bind the other Party or represent that is has such right.
e) Joint and Several Liability. Each of the entities listed herein is a party to this Agreement and is jointly and severally liable for the obligations of Company set forth in this Agreement.
f) Assignment. Company may not assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without DailyPay’s prior written consent. Subject to the foregoing, this Agreement will inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns. DailyPay may freely assign this agreement. Any attempted assignment in violation of this Section 10(g) will be null and void.
g) Waiver; Amendment. This Agreement may not be modified except by a written instrument signed by both Parties. A Party’s failure to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
h) Force Majeure. Nonperformance of either Party will be excused to the extent that performance is rendered impossible by events beyond its reasonable control, provided that the affected Party takes commercially reasonable steps to mitigate the effect of such event.
i) Miscellaneous. Titles and headings used in this Agreement are intended solely for convenience of reference and do not affect its meaning. If any provision of this Agreement will be held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will be unaffected. Except as expressly set forth herein, nothing in this Agreement grants any rights to any entity other than the parties to this Agreement. As used herein, “including” and its derivatives means “including, without limitation,” and “may” means “has the right, but not the obligation to.”
j) Entire Agreement. This Agreement is the entire agreement between the Parties with respect to the Service and supersedes any prior agreements, proposals and understandings about the same subject. DailyPay may change these Terms from time to time and will notify Company of any material changes by email, through the Service, and by posting the updated Terms on this page. The modified Terms will take effect for each Order then in effect when the then-current Term renews pursuant to Section 6(a). Company’s use of the Service following such date will be deemed acceptance of the revised Terms.