Terms and Privacy

Last updated: December 16, 2020

Welcome to the DailyPay movement!

Welcome to DailyPay! DailyPay provides a platform to employers that enables employees and other service providers to access on-demand pay securely, seamlessly, and compliantly. DailyPay’s suite of comprehensive pay experience solutions aims to revolutionize the way employees and other service providers are paid.

We want you to completely understand what we do, how we do it, and what is required of you. These Site Terms (“Terms”) are a contract and 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 a service provider to access, for a transaction fee, unpaid earnings arising from regular pay. The DailyPay Program Terms (https://www.dailypay.com/legal/#program-terms) (“Program Terms”), which supplement these Terms, govern the DailyPay Program. The Services also include “DailyPay Cycle Payment,” a service that allows a service provider of a participating business to access other amounts the business owes to the service provider, such as net bonus pay, incentive pay, expense reimbursements, termination pay, and other off-cycle amounts that do not arise from the regular wage, fee, or salary payment cycle. The DailyPay Cycle Payment Terms (https://www.dailypay.com/legal/#cycle-terms) (“Cycle Payment Terms”), which supplement these Terms, govern DailyPay Cycle Payment.

THESE TERMS CONTAIN AN AGREEMENT TO ARBITRATE ALL CLAIMS, 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.

By using the Site or any of the Services, you agree to these Terms. If you do not agree to these Terms, you may not use the Site or any of the Services and you must close your DailyPay account.

Other Languages: We may offer you a version of these Terms in another language to facilitate your understanding of these Terms, but in case of disputes or controversies the English version will prevail.

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 the entity to which you provide services (the “Hiring Entity”), about you (collectively, “Personal Information”). Personal Information also includes any information that may be used, either alone or in combination with other information, to personally identify an individual, including a first and last name, a personal profile, an email address, mobile phone number, a home or other physical address, or other contact 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 and DailyPay Cycle Payment, 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 and Cycle Payment Terms are examples 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: user.support@dailypay.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.

3. Disclaimer

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.

5. Privacy Policy

Please carefully read our Privacy Policy (https://www.dailypay.com/legal/#privacy), which describes how we collect and use certain information.

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:

    user.support@dailypay.com
    55 Broad Street, 29th Floor, New York, New York 10004
    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.

9. Indemnification

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 THEIR 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, EXECUTION OR PERFORMANCE, 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.

12. Jurisdiction and Venue for Businesses

THIS SECTION 12 APPLIES TO ANY PERSON WHO HAS USED OR IS USING THE SITE, SITE INFORMATION, OR SERVICES PRIMARILY FOR OTHER THAN PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES (EACH SUCH PERSON, A “BUSINESS”).

IN ANY CIRCUMSTANCES IN WHICH ANY ACTION, SUIT, OR PROCEEDING ARISING UNDER THESE TERMS OR THE ADDITIONAL TERMS, OR THE INTERPRETATION, PERFORMANCE, OR BREACH OF THESE TERMS OR THE ADDITIONAL TERMS, IS PERMITTED TO BE INSTITUTED IN COURT, IF DAILYPAY ELECTS, ANY SUCH ACTION, SUIT, OR PROCEEDING WILL BE INSTITUTED AND MAINTAINED IN ANY FEDERAL OR STATE COURT SITTING IN THE STATE OF NEW YORK (“ACCEPTABLE FORUMS”). YOU AGREE THAT THE ACCEPTABLE FORUMS ARE CONVENIENT TO YOU, AND SUBMIT TO THE JURISDICTION OF THE ACCEPTABLE FORUMS AND WAIVE ANY AND ALL OBJECTIONS TO PERSONAL JURISDICTION OR VENUE. SHOULD ANY SUCH ACTION, SUIT, OR PROCEEDING BE INITIATED IN ANY OTHER FORUM, YOU WAIVE ANY RIGHT TO OPPOSE ANY MOTION OR APPLICATION MADE BY DAILYPAY TO TRANSFER SUCH ACTION, SUIT, OR PROCEEDING TO AN ACCEPTABLE FORUM.

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.

15. Miscellaneous

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, the Cycle Payment 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 and Cycle Payment 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 terms or 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: user.support@dailypay.com.

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: user.support@dailypay.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: user.support@dailypay.com. 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: user.support@dailypay.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 or claim relating in any way to your access or use of the Site, Site Information, or Services, to any products sold or distributed through the Site or Services, or to any aspect of your relationship with DailyPay, including, but not limited to, disputes or claims with any Hiring Entity to the extent such disputes or claims arise out of or are related to the Site, Site Information, or Services, will be resolved by binding arbitration, rather than in court, except that: (i) you may assert claims in small claims court if your claims qualify; and (ii) 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 to all claims that arose or were asserted before the effective date of these Terms or to any prior version of these Terms.
  • B. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of 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. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, will be subject to JAMS’s most current version of the JAMS Streamlined Arbitration Rules & Procedures (currently available at https://www.jamsadr.com/rules-streamlined-arbitration/); all other claims will be subject to JAMS’s most current version of the Comprehensive Arbitration Rules & Procedures (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. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing, and/or other fees and cannot obtain a waiver from JAMS, DailyPay will pay them for you. In addition, DailyPay will reimburse all such JAMS’s filing, administrative, hearing, and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in: (i) if you are a Business, in New York, New York, (ii) if you are not a Business, at the JAMS Resolution Center located closest to your domicile or a location in any city in your state of domicile within 10 miles of a federal district court house, or (iii) at another mutually agreed location. 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 will select an alternative arbitral forum, and the provisions of this Section 17.B will be applied to such alternative arbitral forum to the fullest extent as if JAMS were available to arbitrate.
  • C. Authority of Arbitrator. The arbitrator will have exclusive authority to (i) determine the scope and enforceability of this Arbitration Agreement and (ii) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and DailyPay. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim. The arbitrator will 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 will 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 will be resolved by arbitration under this Arbitration Agreement, except as specified in Section 17.A. 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.
  • E. Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS 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 into: (i) if you are a Business, the state or federal courts sitting in the State of New York, (ii) if you are not a Business, the state or federal courts sitting in your state of domicile and having jurisdiction over the severed claim, or (iii) at another mutually agreed location. All other claims will 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: user.support@dailypay.com. 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 10004.

Last updated: December 16, 2020

Welcome to the DailyPay Program!

We want you to completely understand the DailyPay Program. These DailyPay Program Terms (“Program Terms”) are a contract and explain important things you should know about the DailyPay Program.

By using the DailyPay Program, you agree to these Program Terms, the DailyPay Cycle Payment Terms available at https://www.dailypay.com/legal/#cycle-terms, and the DailyPay Site Terms available at https://www.dailypay.com/legal/#site-terms. Please read these Program Terms, the DailyPay Cycle Payment Terms, and the DailyPay Site Terms carefully. Capitalized terms used in these Program Terms have the meanings provided in Section 9 below.

Other Languages: We may offer you a version of these Program Terms in another language to facilitate your understanding of these Program Terms, but in case of disputes or controversies the English version will prevail.

1. The DailyPay Program Provides You with Free Information and Budgeting Tools

DailyPay provides software to individuals that enables the individuals to access unpaid earnings. 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 regular 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 as regular pay (i.e., your Unpaid Earnings).

For clarity, the DailyPay Program does not relate to other amounts the Hiring Entity owes you, such as net bonus pay, incentive pay, expense reimbursements, termination pay, and other off-cycle amounts that do not arise from the regular pay, wage or salary payment cycle. Instead, DailyPay Cycle Payment relates to those amounts.

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 or a paycard to your DailyPay account. You may also link a debit card other than your linked paycard to your DailyPay account in addition to your linked bank account. Each time you ask us to access any Unpaid Earnings, we will ask you to confirm your linked bank account or linked debit card 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 or linked debit card, so that you can use your money whenever, wherever, and however you wish.

We do not assume any liabilities or duties related to any Unpaid Earnings: any such liabilities and duties will remain solely with you. By giving us your right, title, and interest in and to your Daily Earnings, you agree that we can stand in your shoes and receive payment for the Daily Earnings from the Hiring Entity. Our right to receive your Daily Earnings is non-recourse. This means that if the Hiring Entity pays us an amount that is less than the amount of the Daily Earnings—for example, if the Hiring Entity is unable to make payment 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 the Hiring Entity. 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 the Hiring Entity using your DailyPay Routing and Account Number as the account of record in the Hiring Entity’s payment system. You agree to instruct the Hiring Entity to direct all of your net regular pay to that account, and you authorize us to convey such instructions to the Hiring Entity on your behalf. This means that when the Hiring Entity runs payroll or pays fees, all of your net regular pay or fees 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 or linked debit card. If you have linked both a bank account and a debit card, you will receive the rest of your Unpaid Earnings in your linked bank account by default. You may choose to receive them in your linked debit card instead 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: user.support@dailypay.com. Please note that another of our Services, DailyPay Cycle Payment, is not compatible with debit cards linked to your DailyPay account, unless such debit card is a paycard. As a result, even if payments related to the DailyPay Program are delivered to your linked debit card, payments related to DailyPay Cycle Payment will be delivered to your linked bank account, unless your linked debit card is a paycard.

You must notify us immediately if your linked bank account or linked debit card 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 or linked debit card, 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 or linked debit card 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: user.support@dailypay.com. We may use third-party service providers to interact with your linked bank account or linked debit card, including obtaining and exercising your authority to manage and initiate debit and credit transactions involving your linked bank account or linked debit card. You authorize us and these third-party service providers to interact with your linked bank account or linked debit card 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 or if you have been terminated as a service provider by the Hiring Entity.

3. You Consent to the Hiring Entity Sharing Data with Us and Receiving Data from Us

The DailyPay Program relies upon information from the Hiring Entity about you. You consent to the Hiring Entity sharing data required for us to provide the DailyPay Program. This includes:

  • Your name;
  • Your employee identification number, if applicable;
  • Your contact information (including your email and your mobile phone number);
  • Your earnings and timecard information, if applicable;
  • Your gross and net regular pay;
  • Your bank account or debit card information (for purposes of facilitating payments); and
  • Any other related data shared by the Hiring Entity.

DailyPay only requests information from the Hiring Entity that is required to provide the DailyPay Program, and such information is not shared outside of DailyPay, other than with regulators, the Hiring Entity, 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 the Hiring Entity and to provide the Hiring Entity for payment purposes the linked bank account or linked debit card information and related information we have on file for you. You consent to your pay being sent to the linked bank account or linked debit card we have on file for you after your DailyPay account is closed unless you specify otherwise.

You may also provide information or content directly to us through the DailyPay Program. You grant and will grant to DailyPay and its affiliated companies a nonexclusive, worldwide, royalty-free, fully paid up, transferable, sublicenseable, perpetual, irrevocable license to: (A) copy, display, upload, perform, distribute, store, modify, and otherwise use your User Content in connection with the operation of the DailyPay Program; and (B) use your User Content in aggregated and/or anonymized format in connection with (i) the promotion, advertising, or marketing of the DailyPay Program or (ii) other services we provide to our customers and business partners. You represent and warrant that you have the rights to upload, input, or submit the User Content to the DailyPay Program and grant the foregoing license. DailyPay is not obligated to pre-screen or review User Content, but DailyPay reserves the right to do so to ensure your compliance with these Program Terms. DailyPay will also have the right (but not the obligation) in its sole discretion to disable access to or delete any User Content that it considers to violate these Program Terms or be otherwise illegal. DailyPay may share User Content with the Hiring Entity, and any third-party service providers, as well as otherwise described in the Privacy Policy.

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 the Hiring Entity 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 the Hiring Entity 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 the Hiring Entity 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 the Hiring Entity arising solely from your actual and timely provision to the Hiring Entity in the ordinary course of business of lawful services, which you have accurately recorded and described to the Hiring Entity;
  • 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 the Hiring Entity

The DailyPay Program relies upon information from the Hiring Entity about you. Sometimes the Hiring Entity 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 the Hiring Entity. 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 the Hiring Entity to resolve the Dispute. A Dispute is resolved when the Hiring Entity 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 the Hiring Entity or someone other than DailyPay pursuant to Section 4, or if we learn that you are expected to receive such a payment from the Hiring Entity 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 the Hiring Entity, 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. You Appoint Us as Your Attorney In Fact

    You appoint us and our designees your true and lawful attorney in fact, with full power to take any action relating to the Daily Earnings in your name and place that we or our designees deem advisable and consistent with the terms of these Program Terms. You will timely execute and deliver to us any power of attorney instrument evidencing our authority and power under this Section 8.

    9. 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.

    10. 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 the Hiring Entity runs payroll for a specified transaction fee.
    • “DailyPay,” “our,” “us,” and “we” mean DailyPay, Inc.
    • “DailyPay Program” has the meaning set forth in the opening paragraphs of the DailyPay Site Terms.
    • “DailyPay Routing and Account Number” means an account and routing number (which account and routing number DailyPay may change from time to time) that DailyPay establishes for your participation in the DailyPay Program.
    • “Dispute” means a situation in which the Hiring Entity 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.
    • “Hiring Entity” means the entity to which you provide services.
    • “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) for regular pay owed to you by the Hiring Entity arising out of services you have provided to the Hiring Entity or its customers and any other related rights. Unpaid Earnings do not include other amounts the Hiring Entity owes you, such as net bonus pay, incentive pay, expense reimbursements, termination pay, and other off-cycle amounts that do not arise from the regular pay, wage, or salary payment cycle.
    • “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: December 16, 2020

Welcome to DailyPay Cycle Payment!

We want you to completely understand DailyPay Cycle Payment. These DailyPay Cycle Payment Terms (“Cycle Payment Terms”) are a contract and explain important things you should know about DailyPay Cycle Payment.

By using the DailyPay Program, you agree to these Cycle Payment Terms, the DailyPay Program Terms available at https://www.dailypay.com/legal/#program-terms, and the DailyPay Site Terms available at www.dailypay.com/legal/#site-terms. Please read these Cycle Payment Terms, the DailyPay Program Terms, and the DailyPay Site Terms carefully.

Capitalized terms used in these Cycle Payment Terms have the meanings provided in Section 8 below.

Other Languages: We may offer you a version of these Cycle Payment Terms in another language to facilitate your understanding of these Cycle Payment Terms, but in case of disputes or controversies the English version will prevail.

1. If the Hiring Entity Participates, DailyPay Cycle Payment Allows You to Receive Payments for Off-Cycle Amounts

As described more specifically below, DailyPay Cycle Payment allows you, if the entity to which you provide services (the “Hiring Entity”) participates in DailyPay Cycle Payment, to access amounts the Hiring Entity owes you that do not arise from your regular pay, such as net bonus pay, incentive pay, expense reimbursements, termination pay, and other off-cycle amounts that do not arise from the regular pay, wage or salary payment cycle. We will not charge you a fee for the DailyPay Cycle Payment feature described in this Section 1.

For clarity, the DailyPay Cycle Payment does not relate to your regular pay. Instead, the DailyPay Program relates to your regular pay. Here is how the DailyPay Cycle Payment feature works:

From time to time, the Hiring Entity may choose to use DailyPay Cycle Payment in connection with your Cycle Amount. The Hiring Entity may choose to offer you the DailyPay Program either with or without also offering you DailyPay Cycle Payment. If the Hiring Entity chooses not to offer you DailyPay Cycle Payment, then you will need to make separate arrangements with the Hiring Entity in connection with your Cycle Amount.

As a participant in the DailyPay Program, you link at least one of your own bank accounts to your DailyPay account. From time to time, we will ask you to confirm your linked bank account for your receipt of payments. When we deliver to you the Cycle Amount Provided, you give us all right, title, and interest to the related Cycle Amount. We will deliver the Cycle Amount Provided to your linked bank account.

We do not assume any liabilities or duties related to any Cycle Amount: any such liabilities and duties will remain solely with you. By giving us your right, title, and interest in and to your Cycle Amount, you agree that we can stand in your shoes and receive payment for the Cycle Amount from the Hiring Entity.

Our right to receive your Cycle Amount is non-recourse. This means that if the Hiring Entity pays us an amount that is less than the amount of the Cycle Amount—for example, if the Hiring Entity is unable to pay because its business has slowed down or closed in the ordinary course of business—and if you have not breached these Cycle Payment Terms, then you will owe us nothing.

We know that having the right to receive your Cycle Amount has associated risks, and we assume these risks based on the representations, warranties, and promises you make in these Cycle Payment Terms. You agree that the provisions of these Cycle Payment Terms are designed to give us a reasonable and fair opportunity to receive the benefit of our transaction with you.

Your participation in DailyPay Cycle Payment does not require you to set up new direct deposit arrangements with the Hiring Entity. As a participant in the DailyPay Program, you receive from us a DailyPay Routing and Account Number for an account that we establish for your participation in the DailyPay Program. The same DailyPay Routing and Account Number is used for your participation in DailyPay Cycle Payment. You agree to make direct deposit arrangements with the Hiring Entity using your DailyPay Routing and Account Number as the account of record in the Hiring Entity’s payments processes for amounts the Hiring Entity owes you that do not arise from your regular pay, such as net bonus pay, incentive pay, expense reimbursements, termination pay, and other off-cycle amounts that do not arise from the regular pay, wage, or salary payment cycle. You agree to instruct the Hiring Entity to direct all such net bonus pay, incentive pay, expense reimbursements, termination pay, and other off-cycle amounts that do not arise from the regular pay, wage, or salary payment cycle to your DailyPay Routing and Account Number, and you authorize us to convey such instructions to the Hiring Entity on your behalf. This means that when the Hiring Entity runs its payments processes, all of your net bonus pay, incentive pay, expense reimbursements, termination pay, and other off-cycle amounts that do not arise from the regular pay, wage, or salary payment cycle will be directly deposited in the account bearing the DailyPay Routing and Account Number. For each such payment, we will keep any Cycle Amount, and you will receive the Cycle Amount Provided in your linked bank account.

DailyPay Cycle Payment is not compatible with debit cards linked to your DailyPay account, unless such debit card is a paycard. As a result, even if payments related to the DailyPay Program are delivered to your linked debit card, payments related to DailyPay Cycle Payment will be delivered to your linked bank account.

You must notify us immediately if your linked bank account or linked paycard information changes. If you do not, your DailyPay account and your participation in DailyPay Cycle Payment, including your payments or Cycle Amount, 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 or linked paycard, so there may be delays which are beyond DailyPay’s control and which you may resolve with your bank. You may change the linked bank account or linked paycard 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: user.support@dailypay.com.

We may use third-party service providers to interact with your linked bank account or linked paycard, including obtaining and exercising your authority to manage and initiate debit and credit transactions involving your linked bank account or linked paycard. You authorize us and these third-party service providers to interact with your linked bank account or linked paycard to the extent necessary to provide you DailyPay Cycle Payment.

We reserve the right, in our sole discretion, to delay, suspend, or terminate your access to your DailyPay account, your participation in DailyPay Cycle Payment, and payments if we believe there has been fraudulent or suspicious activity related to your DailyPay account.

2. You Consent to the Hiring Entity Sharing Data with Us and Receiving Data from Us

DailyPay Cycle Payment relies upon information from the Hiring Entity about you. You consent to the Hiring Entity sharing data required for us to provide DailyPay Cycle Payment. This includes:

  • The information you consented to the Hiring Entity sharing with us in connection with the DailyPay Program;
  • Your gross and net bonus or other incentive payment information;
  • Your travel, entertainment, and other business expense and reimbursement details, including transaction receipts, reports, and other related documentation;
  • Your payment information, including information related to payment corrections, paid time off, and termination pay;
  • Your employment status, including your termination date, if applicable; and
  • Any other related data shared by the Hiring Entity.

DailyPay only requests information from the Hiring Entity that is required to provide DailyPay Cycle Payment, and such information is not shared outside of DailyPay, other than with regulators, the Hiring Entity, and DailyPay’s service providers that are necessary to provide DailyPay Cycle Payment.

If your DailyPay account is closed, you authorize us to inform the Hiring Entity and to provide the Hiring Entity for payment and expense reimbursement purposes the linked bank account or linked paycard information and related information we have on file for you. You consent to your Cycle Amount being sent to the linked bank account or linked paycard we have on file for you after your DailyPay account is closed unless you specify otherwise.

You may also provide information or content directly to us through DailyPay Cycle Payment. You grant and will grant to DailyPay and its affiliated companies a nonexclusive, worldwide, royalty-free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to: (A) copy, display, upload, perform, distribute, store, modify, and otherwise use your User Content in connection with the operation of DailyPay Cycle Payment; and (B) use your User Content in aggregated and/or anonymized format in connection with (i) the promotion, advertising, or marketing of DailyPay Cycle Payment or (ii) other services we provide to our customers and business partners. You represent and warrant that you have the rights to upload, input, or submit the User Content to DailyPay Cycle Payment and grant the foregoing license. DailyPay is not obligated to pre-screen or review User Content, but DailyPay reserves the right to do so to ensure your compliance with these Cycle Payment Terms. DailyPay will also have the right (but not the obligation) in its sole discretion to disable access to or delete any User Content that it considers to violate these Cycle Payment Terms or be otherwise illegal. DailyPay may share User Content with the Hiring Entity, and any third-party service providers, as well as otherwise described in the Privacy Policy.

3. 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 Cycle Amount;
  • 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 Cycle Amount) that has, individually or in the aggregate, an adverse effect on our ability to collect on or retain any Cycle Amount; and
  • You will not use DailyPay Cycle Payment to obtain more than the Cycle Amount you are owed by the Hiring Entity, including receiving payments on the Cycle Amount from both DailyPay and another person for the same obligation. If you receive a payment on the Cycle Amount from the Hiring Entity 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 the Hiring Entity or someone other than DailyPay, and in either case we may debit your linked bank account in the amount of the Amount Provided, as provided in Section 6, or otherwise provide remittance instructions to you.

4. You Make Certain Representations and Warranties to Us

You represent and warrant to us on a continuing basis that:

  • These Cycle Payment 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 Cycle Payment 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 Cycle Payment Terms that, if adversely determined, would be reasonably expected to have an adverse effect on our ability to collect on or retain any Cycle Amount; and
  • You have not used any name with us or with the Hiring Entity other than the name you used or verified to establish your DailyPay account.

And each time you use DailyPay Cycle Payment to access of your Cycle Amount, you also represent and warrant to DailyPay that at the time we deliver the Cycle Amount Provided:

  • You hold all legal right, title, and interest to and in the Cycle Amount, free and clear of any liens, encumbrances, judgments, or garnishments; and you have not sold, pledged, assigned, or encumbered the Cycle Amount;
  • The Cycle Amount is presently and unconditionally owing and has not been modified, dismissed, settled, or paid; is not currently past due; and represents the amount owed by the Hiring Entity arising solely from your actual and timely provision to the Hiring Entity in the ordinary course of business of lawful services or of advancement of expenses, which you have accurately recorded and described to the Hiring Entity;
  • The Cycle Amount is 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 Cycle Amount or its underlying services or advancement of expenses.

5. You Are Responsible for All Disputes Between You and the Hiring Entity

DailyPay Cycle Payment relies upon information from the Hiring Entity about you. Sometimes the Hiring Entity might disagree with you about the amount of the Cycle Amount you earned, you advanced, or the amount that it owes you. We do not resolve or otherwise become involved in Disputes between you and the Hiring Entity. 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 the Hiring Entity to resolve the Dispute. A Dispute is resolved when the Hiring Entity pays the full amount of the disputed Cycle Amount. You will provide DailyPay periodic updates, as requested by DailyPay, regarding the status of the Dispute.

You must resolve any Dispute related to the Cycle Amount within 30 days of becoming aware of it. If you are unable to resolve a Dispute related to the Cycle Amount within 30 days of becoming aware of it, then you must immediately send us payment in the amount of the Cycle 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 6.

6. We May Debit Your Linked Bank Account to Correct Errors, Fraud, and Other Breaches of these Cycle Payment 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 Cycle Payment Amount due to an operational error, then the difference up to the amount of the error;
  • If you directly receive any payment on the Cycle Amount from the Hiring Entity or someone other than DailyPay pursuant to Section 3, or if we learn that you are expected to receive such a payment from the Hiring Entity or someone other than DailyPay, then up to amount of the Cycle Amount you received; or
  • If you otherwise receive or retain an Cycle Payment Amount that was determined with respect to Cycle Amount in excess of those to which you were legally entitled to receive from the Hiring Entity, 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 3, 4, or 5 (including if you are unable to resolve a Dispute related to the Cycle Amount and did not send us payment), then up to the Cycle Payment Amount. 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 6, we retain the right to pursue any other remedy permitted by law or equity.

7. 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 Cycle Payment 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.

8. Definitions Used in These Cycle Payment Terms

The following terms used in these Cycle Payment Terms have the following meanings:

  • “Cycle Amount” means the right to payment (e.g., account receivable) owed to you by the Hiring Entity that are not part of the regular fee, wage, or salary payment cycle, such as (A) earned or accrued but unpaid or other incentive payments, travel, entertainment, or other business expenses, (B) termination payments, relating to services you have provided, (C) amounts you have advanced on behalf of the Hiring Entity or its customers and any other related rights, (D) payment corrections, (E) paid time off, and (F) other off-cycle amounts that do not arise from the regular fee, wage, or salary payment cycle. For clarity, the Cycle Amount does not include your regular pay.
  • “Cycle Amount Provided” means the Cycle Amount we have agreed to make available to you.
  • “Cycle Payment Terms” means these DailyPay Cycle Payment Terms.
  • “DailyPay,” “our,” “us,” and “we” mean DailyPay, Inc.
  • “DailyPay Cycle Payment” means a Service offered by DailyPay to facilitate the payment of Cycle Amounts.
  • “DailyPay Routing and Account Number” means an account and routing number (which account and routing number DailyPay may change from time to time) that DailyPay establishes for your participation in the DailyPay Program.
  • “Dispute” means a situation in which the Hiring Entity questions, objects, denies, challenges, or contradicts the quality, quantity, or other aspect of any of your services or advanced expenses that are related to the Cycle Amount, and is unwilling to pay or claims a right to recover any portion of the Cycle Amount.
  • “DailyPay Program” has the meaning set forth in the opening paragraphs of the DailyPay Site 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.
  • “User Content” means, in addition to information that is made available to DailyPay through your use of DailyPay Cycle Payment, information about you that you provide DailyPay, including information about your financial, personal, or professional activities.

PRIVACY POLICY

This is the Privacy Policy (“Privacy Policy“) that governs how we, DailyPay Inc. (collectively “DailyPay”, “we”, “our” or “us”), use Personal Information (defined below) that we collect, receive and store about individuals in connection with the use of: the website www.dailypay.com, and any other website that we operate (each, together with its sub-domains, content and services, a “Site” or “Services”).

1. Introduction. We have implemented this Privacy Policy because your privacy, and the privacy of other users, is important to us. This Privacy Policy explains our online information practices and the choices you can make about the way your Personal Information is collected and used in connection with the Services. “Personal Information” means any information that may be used, either alone or in combination with other information, to personally identify an individual, including, but not limited to, a first and last name, a personal profile, an email address, mobile phone number, a home or other physical address, or other contact information.

2. Terms of Use. This Privacy Policy forms part of our Terms of Use which is available on our website www.dailypay.com/terms.

3. Consent and Modification. By using the Services, you consent to the terms of this Privacy Policy and to our collection, processing and sharing of Personal Information for the purposes set forth herein. If you do not agree to this Privacy Policy, please do not access or otherwise use the Services. We reserve the right, at our discretion, to change this Privacy Policy at any time. Such change will be effective ten (10) days following posting of the revised Privacy Policy on the Site, and your continued use of the Services thereafter means that you accept those changes.

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.

Third Party Accounts: You may choose to create (or supplement) an Account by clicking on a ‘connect’ or ‘sign on’ button that we may display on the Site for a designated account that you have with a third party website or service (each a ‘Third Party Account’). Doing so will enable you to link your DailyPay Account and your Third Party Account. If you choose this option, then we will obtain certain information, including Personal Information, from your Third Party Account. The information that we obtain from your Third Party Account is information that you have chosen to make available to us as part of your use of your Third Party Account, and is typically identified in the privacy policy of your Third Party Account provider. You acknowledge and agree to review and be bound by the terms of use and privacy policy of the provider of your Third Party Account. Please note that in order to use this option, you will need to have, and may need to be signed-in to, an existing Third Party 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).

5.3. We may transfer your Personal Information to our subsidiaries or affiliated companies for the purpose of storing or processing such information on our behalf. Such information may be transferred to other countries around the world. We require that these parties agree to process such information in compliance with our Privacy Policy.

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 .

10. Links to and Interaction with Third Party Products.| The Services may enable you to interact with or contain links to your Third Party Account and other third party websites, mobile software applications and services that are not owned or controlled by us (each a “Third Party Service”). We are not responsible for the privacy practices or the content of these Third Party Services. Please be aware that the Third Party Services may collect Personal Information from you. Accordingly, we encourage you to read the terms and conditions and privacy policy of each Third Party Service that you choose to use or interact with.

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: January 12, 2021

THESE TERMS AND CONDITIONS (THE “TERMS”) GOVERN THE USE OF AND ACCESS TO THE SOFTWARE-AS-A-SERVICE EARNINGS 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”).

1. LICENSE

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   access to accrued, unpaid earnings prior to Company’s regularly scheduled payroll processing (“Earnings”). Each employee who elects to use the Service to access Earnings 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 Earnings 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 may be made available to Company when made available to other DailyPay partners.

2. USE OF THE SERVICE

a) Company Responsibilities 

i) Company shall promote the availability of the Service to employees as set forth in the “rollout plan”, 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.

ii) Company shall designate at least one (1) individual at its 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.

iii) 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).

iv) If Company makes User, Earnings, 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.

v) Company shall provide DailyPay with current, accurate information about Earnings at the times and in the manner agreed by the Parties. Earnings information may be made available through a Company API. 

vi) 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 shall notify Users to update such information in connection with registering for the Service. Failure to comply with providing accurate and timely records may result in delay or an overpayment to the Users, and Company may be held liable for any such delay or overpayment.

vii) 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).

viii) Company shall provide a net earnings file in accordance with the procedures outlined during the implementation stage to enable DailyPay to pre-fund User accounts on scheduled payday. Company acknowledges that if the net earnings file is not received in a timely basis it will cause delays in Users receiving their payroll payments.

ix) If a User is terminated, Company shall immediately deactivate the User’s account in the DailyPay Partner Portal. If the terminated User is to receive their final pay via a paper check, i) Company shall provide the amount of final pay via the DailyPay Partner Portal and ii) DailyPay will report, and Company shall apply, any adjustments to the final pay as reported. If Company provides full net pay via paper check irrespective of any transfers, DailyPay may invoice Company for the amount of such transfers (and any associated charges payable by the User) at the end of the pay period. If so invoiced, Company shall pay the invoice within thirty (30) days of receipt.

x) 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.

xi) 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.

xii) 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).

xiii) Company is responsible for providing gross earnings data in accordance with DailyPay practices communicated to Company during the implementation stage.

xiv) 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 two (2) business days of receiving notice from DailyPay that it is not able to recoup the amounts owed.

xv) 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.

i) DailyPay shall provide the Service in accordance with all applicable laws and government regulations.

ii) 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).

iii) DailyPay shall provide Company with support for Administrators and Users as set forth in the Order.

iv) DailyPay shall conduct a training call / webinar for Administrators as part of implementation of the Service.

v) 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.

vi) DailyPay will, either through the Service or otherwise, provide Company with information regarding Users for whom DailyPay has not received Earnings from Company, and the status of User accounts (including when any User account is terminated).

vii) DailyPay shall distribute payroll payments received from Company pursuant to Section 2(a)(vii) to Users net of any prepaid Earnings and service fees owed to DailyPay by such Users.

viii) 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)(vii), or (B) in the sole judgement of DailyPay, said User presents a risk of fraud or unauthorized use.

ix) DailyPay represents and warrants that it is compliant, and shall ensure at all times during the Term that it will remain compliant, with the Payment Card Industry Data Security Standard requirements (“PCI-DSS”), in each case, to the extent PCI-DSS applies to the Service.

3. OWNERSHIP

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 Earnings 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.

4. FEES

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. Notwithstanding the foregoing, if Company (during initial or renewal term) changes its payroll system and/or makes similar changes which impact the DailyPay Service, DailyPay shall be entitled to invoice Company for DailyPay’s related costs and fees .

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 Earnings 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 Earnings (the User Program Terms “Program Terms”). Users must enter into Program Terms in order to access the Service and receive Earnings 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 or adjust Company and/or User 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 or adjust Company and/or User access to 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 its payment of Earnings to Users and the Service, 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/or 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 otherwise terminated pursuant to this Agreement.

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 Earnings paid to Users by DailyPay but not funded to the DailyPay User Account by Company as of the date of termination or expiration within two (2) business 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 and any rights or obligations of the Parties which, by their express terms, nature or context are intended to survive termination, 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 SET FORTH IN THIS AGREEMENT, 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.

8. INDEMNIFICATION

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 Earnings resulting from inaccuracies in the Company Data, or Company’s failure to provide Company Data necessary for DailyPay to make payments of Earnings to Users), or (iii) the amount of Earnings paid to a User.

c) Procedures. The obligations in this Section 8 are contingent on the indemnified Party (i) promptly notifying the indemnifying 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 indemnifying Party at the indemnifying Party’s expense.

9. LIMITATION OF LIABILITY

EXCEPT FOR A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF INDEMNIFICATION OBLIGATIONS UNDER SECTION 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 fifteen (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 hearing and proceedings, including all rulings and awards,  unless: (1) otherwise required by law or judicial decision, (2) as may be necessary to prepare for or conduct the arbitration, (3) as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award, or its enforcement, or (4) 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.

f) Arbitration of Claims with Users.  Company acknowledges that the Site Terms of Use (“Site TOU”) between DailyPay and the employees of the Company who use the Service (“Participating Users”) includes an Arbitration Agreement (as defined in the Site TOU).  Company agrees to be bound by the Arbitration Agreement and to arbitrate any Covered Claims (as defined in the Site TOU) between Company and a Participating User in accordance with the Arbitration Agreement in the Site TOU.

11. MISCELLANEOUS

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; Publicity. DailyPay may utilize Company’s name and/or logo to indicate that Company is a customer as part of DailyPay’s on and offline sales and marketing materials (including press releases). 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.  DailyPay will also be permitted to issue a press release or otherwise publicly announce its Service launch with the Company.  At Company’s request, any such release may be jointly issued.

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 Company entities identified in this Agreement, including its/their subsidiaries and affiliates, 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 11(f) 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.


THE DAILYPAY CYCLE PAYMENTS ADDENDUM BELOW APPLIES ONLY IF YOU OPTED IN TO THE CYCLE SERVICE ON YOUR ORDER.


DAILYPAY CYCLE PAYMENTS ADDENDUM

THIS DAILYPAY CYCLE PAYMENT ADDENDUM (THIS “ADDENDUM”) GOVERNS THE USE OF AND ACCESS TO THE DAILYPAY CYCLE SERVICE (THE “CYCLE SERVICE”).  BY EXECUTING AN ORDER AND CHECKING THE BOX OPTING IN TO THE CYCLE SERVICE YOU AGREE TO BE BOUND BY THIS ADDENDUM (COLLECTIVELY WITH THE TERMS AND THE ORDER, THE “AGREEMENT”).

1.  Added to the Agreement; Incorporating the Terms.  This Addendum is hereby added to and made part of the Agreement.  For purposes hererof:

(a)  references in the Terms to the “Service” shall mean the Cycle Payment feature of the Service and any other portion of the Service that is required in order for DailyPay to provide, or Company to access and use the Cycle Payment feature of the Service;

(b)  this Addendum shall constitute an “Order” as used in the Terms;

(c)  references in the Terms to “Agreement” shall include this Addendum together with the Terms, as supplemented and modified by the provisions of this Addendum; and

(d)  the Technology Charge under this Addendum shall constitute a “Fee” under the Terms.

2.  Definitions.  The following capitalized terms used in this Addendum have the meanings provided below.

“Cycle Payment” means a payment made to an employee by DailyPay on behalf of Company, for amounts owed to the employee, including, for example, pay termination payments, bonus or other incentive payments, and travel and entertainment expenses, in exchange for all right, title, and interest to such amounts owed to the employee, which is referred to herein as the “Cycle Amount”.

“Cycle Amount Payment” means payment of the full amount of each Cycle Amount equal to the corresponding Cycle Payment made by DailyPay to an employee of Company, plus the corresponding Technology Charge.

“Technology Charge” is defined in Section 7 of this Addendum.

Other capitalized terms used but not defined in this Addendum have the meanings provided in the Agreement.

3.  Cycle Payment Feature. DailyPay grants Company a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to access and use the Cycle Payment feature of the Service as provided in the Terms and this Addendum to facilitate DailyPay making Cycle Payments to its employees.  Section 7 of the Terms applies to this Addendum.  Without limiting the preceding sentence, DailyPay makes the Service available to Company under this Addendum on an “AS IS” basis. 

4.  Cycle Payment Instructions. Company will forward instructions to DailyPay to make Cycle Payments to employees. Company will include any information needed by DailyPay to execute payment instructions, including identifying the employee receiving a Cycle Payment, the amount of the Cycle Payment, Cycle Payment disbursement date and employee bank account information for crediting the Cycle Payment. Company is responsible for calculating any applicable withholding, payroll taxes and other deductions to local, state and federal tax authorities and other persons; creating and providing any required paystub to employees; and ensuring that any information provided to DailyPay related to Cycle Payments is accurate and complete.  DailyPay will not be liable for any Cycle Payment made to an employee of Company that is consistent with payment instructions. 

5.  Cycle Payment Funding. DailyPay will use its own funds to make Cycle Payments to employees of Company.  DailyPay will provide Company notice of each Cycle Payment made to employees of Company, and Company will pay DailyPay the corresponding Cycle Amount Payment at its election by either (a) to the bank account designated by DailyPay by wire transfer or automated clearing house (ACH), within seven (7) business days of Company’s receipt of such notice; or (b) authorizing DailyPay to initiate debit entries to Company’s designated bank account beginning the day after receipt of such notice.  Overdue Cycle Amount Payments 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 Cycle Amount Payment was due until the date paid.

6.  Additional Responsibilities.

(a)  Additional Company Responsibilities.  In addition to its applicable responsibilities under Section 2(a) of the Terms with respect to the Cycle Payments, Company shall have the following responsibilities with respect to the Cycle Payments:

(i)  Required Tax Deposits. Company will make all required tax deposits of withheld federal and state income taxes and the employer and employee share of Social Security and Medicare taxes with respect to each Cycle Payment not later than the first business day following the payment date of such Cycle Payment. Company will use reasonable methods to ensure compliance with this requirement, which may include Company making on or about the first day of any quarter, or carrying over from the preceding quarter, excess federal tax deposits in an amount not less than the projected federal income tax withholding and employer and employee share of Social Security and Medicare taxes attributable to the projected Cycle Payments for that quarter.  

(ii)  Notice and Information.  If any taxing authority notifies Company of tax underwithholding with respect to a Cycle Payment, or that the required deposit or payment of such withholding taxes was not paid to the applicable federal, state, local or other government (or applicable depository) by the applicable deadline, Company will promptly notify DailyPay, of such notice. Company will also notify DailyPay promptly after Company pays such underwithheld taxes, or short or late deposits, and any resulting interesting, penalties and other costs.  Upon DailyPay’s request, Company will promptly give DailyPay such information as reasonably required by DailyPay to show Company’s compliance with this Section 6(a).

(iii)  Sole Responsibility for Tax Underwithholding.  If any taxing authority determines that the taxes withheld from any Cycle Payment were less than the required amount, Company will have sole responsibility to pay the underwithheld amount and any resulting interest, penalties and other costs.

(iv)  Sole Responsibility for Deposits and other Tax Payments.  If any taxing authority determines that the applicable withholding taxes for any Cycle Payment were not deposited or paid to the applicable federal, state, local or other government, or applicable depository, by the applicable deadline, Company will have sole responsibility to make any additional required payments or deposits, and to pay any interest, penalties and other costs arising from the failure to make timely deposits.

(v)  Sole Responsibility for Information Returns.  If any taxing authority determines that the Form W-2 or other required information return is incorrect with respect to a Cycle Payment, Company will have sole responsibility to correct such information return and pay any resulting fines, penalties and other costs.

(vii) Further Assurances. Company will cooperate with DailyPay to obtain employee consent and instructions to receive Cycle Payments.

(b)  Additional DailyPay Responsibilities.  In addition to its applicable responsibilities under Section 2(b) of the Terms with respect to the Cycle Payments, Daily Pay will timely confirm to Company that each Cycle Payment was made on the date instructed by the Company, to the account and in the amount instructed by the Company.

7. Technology Charge. Company will pay the technology charge set forth on Attachment 1 to DailyPay to facilitate payment of each Cycle Payment through the Service to an employee (“Technology Charge”).  Company will pay the Technology Charge at the same time it pays the corresponding Cycle Amount Payment or at another time mutually agreed upon by Company and DailyPay.

8.   Cycle Payment Disputes. Company will solely be responsible for addressing any employee dispute relating to any Cycle Amount, including a dispute about the amount the Cycle Amount. DailyPay will not be responsible for correcting any erroneous payment instructions forwarded by Company, including not being required to debit from employee bank accounts any erroneous payment.

9.  Incomplete Cycle Payment. Company must forward complete and accurate payment instructions and information for DailyPay to initiate any Cycle Payment.  DailyPay is not required to make any Cycle Payment it believes would violate applicable law, is based on incomplete or inaccurate instructions or information, or presents safety, soundness or reputational concerns.

10.  Indemnification.  In addition to its indemnification obligations under Section 8(b) of the Terms, Company will indemnify, defend and hold harmless DailyPay, DailyPay and their respective officers, directors and employees from and against any third party (including any employee of Company or any taxing or other governmental authority) claim, action or demand, and all associated losses, liabilities, damages, costs and expenses (including reasonable legal fees and disbursements and costs and expenses of investigation and litigation, and costs of settlement, judgment, interest and penalties), arising out of or related to Company’s failure to perform any of its deposit, payment or other obligations set forth in Section 6(a) of this Addendum in a full and timely manner.  The aforesaid obligations of Company shall be deemed to be indemnification obligations of Company under Section 8 of the Terms for, without limitation, the procedural requirements set forth in Section 9(c) of the Terms, the exception set forth in the lead-in to the limitations on liability in the first sentence of Section 9 of the Terms, and the survival provision set forth in clause (vi) of Section 6(d) of the Terms.

11.  Term and Termination.

(a)  As part of the Agreement, the term of this Addendum will be co-terminous with the “Term” of the Agreement.  The term of this Addendum will renew, expire and terminate at the same time that the Term of the Agreement renews, expires or is terminated, without the need for any notice or action of either DailyPay or Company.

(b)  Without limiting the termination rights of DailyPay and Company set forth in Section 6(b) the Terms, DailyPay may terminate this Addendum without an opportunity for Company to cure if Company fails to make in a timely manner any of the deposits or payments to be made by Company pursuant to Section 6(a) of this Addendum two or more times in any rolling twelve (12) month period.

(c)  Section 6(d) of the Terms will apply to the expiration or any termination of this Addendum and, without limiting the provisions of clause (vi) of Section 6(d) of the Terms, Company’s deposit, payment and other obligations under Section 6(a) of this Addendum will survive the expiration or termination of this Addendum.

Attachment 1

Technology Charge

Method of Payment of Cycle Amount PaymentTechnology Charge For Each Cycle Amount Payment
Wire transfer or automated clearing house (ACH) by Company to DailyPay pursuant to Section 5(a) of the Addendum$7
Debit of Company’s designated bank account by DailyPay beginning the day after receipt of a notice from DailyPay pursuant to Section 5(b) of the Addendum$5