Welcome to the Wisely® Earned Wage Access Program powered by DailyPaySM!
Last updated: April 27, 2022
We want you to completely understand the Wisely Earned Wage Access Program powered by DailyPay (Wisely EWA Program) made available to you through the Site. The Wisely EWA Program is only available to you if your Hiring Entity has agreed to make this
offering, which is provided by DailyPay through the Site. These Wisely EWA Program Terms (“Program Terms”) are a contract and explain important things you should know about the Wisely EWA Program.
By using the Wisely EWA Program, you agree to these Program Terms. Capitalized terms used in these Program Terms have the meanings provided in Section 25 below.
THESE PROGRAM TERMS CONTAIN AN AGREEMENT TO ARBITRATE ALL CLAIMS, WAIVE CLASS ACTIONS, AND WAIVE JURY TRIALS (SECTION 24), DISCLAIMERS (SECTION 10), AND LIMITATIONS ON LIABILITY (SECTION 11). PLEASE READ THESE PROGRAM TERMS, INCLUDING THOSE SECTIONS,
CAREFULLY.
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 Wisely EWA Program Provides You with Free Information to Help You Budget
The Wisely EWA Program provides you with information including the amount of your already earned pay that we are willing to make available to you, subject to any limits we put in place.
2. You Can Also Use the Wisely EWA Program to Access Your Unpaid Earnings
In addition to the information and budgeting tools described in Section 1, you can use the Wisely EWA Program to access, for a transaction fee, if any, some or all of the money you have already earned as regular pay (i.e., your Unpaid Earnings). ADP
may, in its sole discretion and subject to terms and conditions specified by ADP, waive the transaction fee, enabling your access to your earned pay without payment of such transaction fee.
For clarity, the Wisely EWA 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.
Here is how this feature works:
From time to time, you may log into your myWisely account to access some or all of your available Unpaid Earnings. We will also show you how much of your Unpaid Earnings we are willing to provide, and we will disclose our transaction fee, if any,
to you. You will have an opportunity to accept or decline the transaction terms. When you accept the transaction terms, you give DailyPay all right, title, and interest to the related Program Earnings and we will send the Amount Provided to your
primary Wisely account, so that you can use your money.
ADP, DailyPay, and the issuing bank of your Wisely account (the “Issuing Bank”) do not assume any liabilities or duties related to any Unpaid Earnings; any such liabilities and duties will remain solely with you. By giving DailyPay your right, title,
and interest in and to your Program Earnings, you agree that DailyPay can stand in your shoes and receive payment for the Program Earnings from the Hiring Entity. DailyPay’s right to receive your Program Earnings is non-recourse. This means that
if the Hiring Entity pays us an amount that is less than the amount of the Program 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 DailyPay nothing.
We know that having the right to receive your Program Earnings has associated risks, and DailyPay assumes 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 DailyPay a reasonable and fair opportunity to receive the benefit of its transaction with you.
You agree to make direct deposit arrangements with the Hiring Entity using your Wisely account 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 DailyPay to convey such instructions to the Hiring Entity on your behalf. This means that when the Hiring Entity runs payroll or makes service provider payments, all of your net regular pay or service provider payments, as the case
may be, will be directly deposited in your Wisely account. For each pay period, we will keep any Program Earnings, and you will receive the rest of your Unpaid Earnings in your Wisely account.
You must notify us immediately if you switch your account information to an account other than your Wisely account. If you do not, your Wisely account and your participation in the Wisely EWA Program, including your payments or Program Earnings and
Unpaid Earnings, could be adversely impacted. We are not liable for any of these adverse impacts. We also do not control when ADP or the Issuing Bank posts incoming payments to your Wisely account, so there may be delays which are beyond DailyPay’s
control and which you may resolve with directly with Wisely customer service. We may use third-party service providers to interact with your linked Wisely account, including obtaining and exercising your authority to manage and initiate debit and
credit transactions involving your linked Wisely account. You authorize us and these third-party service providers to interact with your linked Wisely account to the extent necessary to provide you the Wisely EWA Program.
We reserve the right, in our sole discretion, to delay, suspend, or terminate your participation in the Wisely EWA Program, and payments if we believe there has been fraudulent or suspicious activity related to your use of the Wisely EWA Program or
if you have been terminated as an employee or service provider by the Hiring Entity.
3. You Consent to the Hiring Entity Sharing Data with Us and Receiving Data from Us
The Wisely EWA Program relies upon information from the Hiring Entity about you (“Personal Information”). You consent to the Hiring Entity sharing data with DailyPay, ADP, and the Issuing Bank to help DailyPay to provide the Service. Personal Information
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 date of birth;
-
The last four digits of your social security number;
-
Your Wisely account information (for purposes of facilitating payments); and
-
Any other related data shared by the Hiring Entity.
DailyPay only requests Personal Information from the Hiring Entity that is required to provide the Wisely EWA Program, and such information is not shared outside of DailyPay, ADP, or the Issuing Bank other than with regulators, the Hiring Entity,
and ADP’s and DailyPay’s service providers that are necessary to provide the Wisely EWA Program.
ADP and DailyPay cannot provide retroactive access to Unpaid Earnings that arose before you started using the Service.
If you wish to stop your participation in the Wisely EWA Program, you may do so through the Site. If you have any difficulty doing so, you may email us a request for assistance at: wisely-ewa-support@dailypay.com. You will stop receiving
the Service after we carry out the request. Requesting to withdraw from the Wisely EWA Program has no effect on your duties to us arising prior to your request becomes effective, all of which survive the expiration or termination for any reason of
these Program Terms.
You may also provide information or content through the Wisely EWA Program. You grant and will grant to ADP and DailyPay and their respective 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 Wisely EWA Program; and (B) use your User Content in aggregated and/or anonymized
format in connection with (i) the promotion, advertising, or marketing of the Wisely EWA 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 Wisely EWA 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 not modify, distribute, publish, license, create derivative works from, transfer, or sell any information or content contained on the Site;
-
You will not disassemble, decrypt, extract, reverse engineer or reverse compile the Site, or otherwise attempt to discover the source code, confidential algorithms or techniques incorporated in the Site, or circumvent, disable or otherwise interfere
with security-related features of the Site; -
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 Program 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 Program Earnings) that has, individually or in the aggregate, an adverse effect on our ability
to collect on or retain any Program Earnings; and -
You will not use the Wisely EWA Program to obtain more Unpaid Earnings than you have earned, including receiving payments on the Program Earnings from both DailyPay and another person for the same work. If you receive a payment on the Program 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 Program 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:
-
If an individual, you are at least 18 years of age; provided that if you are not at least 18 years of age, you warrant that you have consent from your parent or legal guardian, that your parent or legal guardian will take full responsibility for
all activity related to your participation in the Wisely EWA Program and all of your duties under these Program Terms. Without limiting the foregoing, we may restrict access to the Service for any individual who is not at least 18 years of age,
unless such individual provides us with a written copy of the foregoing consent in the form we specify; -
You are fully authorized to enter into and perform under these Program Terms;
-
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, including bankruptcy, 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 Program Earnings; -
You have not used any name with us or with the Hiring Entity other than the name you used or verified to establish your Wisely EWA Program account;
-
Any information, materials, data, content, or documents you provide or make available to us are and will remain true, correct, and complete;
-
You will maintain and update the Personal Information that you provide us to keep it true, accurate, current, and complete;
-
You have all the necessary rights to provide us with your User Content and Personal Information and to grant the rights and licenses set forth in these Program Terms;
-
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 Wisely account (debit account) and Site account; and
-
You are and will remain solely liable for the activity that occurs in connection with your Wisely and Site accounts and will notify us immediately if you become aware of any unauthorized access to your such accounts in connection with the Wisely
EWA Program.
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 Wisely EWA 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. You will provide DailyPay periodic updates, as requested by DailyPay, regarding the status of the Dispute.
You must resolve any Dispute related to the Program Earnings within 30 days of becoming aware of it. If you are unable to resolve a Dispute related to the Program 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 Wisely account as provided in Section 7. A Dispute is resolved, and our right to debit your Wisely account ends, when the Hiring Entity pays us the full amount of the disputed Program Earnings.
7. We May Debit Your Wisely 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 Program 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 Program Earnings you received; or
-
If you otherwise receive or retain an Amount Provided that was determined with respect to Program 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 Program Earnings and did not send us payment), then up to the Amount Provided.
If we decide to debit your Wisely account, we will notify you at least one business day before we debit your Wisely account unless we are asked to correct a systematic error by the Hiring Entity; 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 Program 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 other amounts owed to us by you from any amounts you may otherwise be entitled to receive 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. Disclaimer
Site Information 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 Service 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 Service 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 Service, 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 Service 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 Service (and any server that makes the Site or Service 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 Service 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 Program Terms which are prevented or interfered with by conditions beyond DailyPay’s reasonable control.
11. 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, INCLUDING ADP, THE ISSUING BANK AND THEIR RESPECTIVE AFFILIATES, AND EACH OF THEIR OWNERS, DIRECTORS, OFFICERS, AND EMPLOYEES 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, SERVICE, 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 SERVICE, RELATED TO THE SERVICE, OR CONTAINED ON ANY SUCH WEBSITES OR OTHER CONTENT LINKED TO THE SITE; OR
-
THESE PROGRAM TERMS OR ANY ACTS OR OMISSIONS UNDER OR IN FURTHERANCE OF THESE PROGRAM 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 SERVICE, 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.
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 SERVICE DURING THE MONTH PRIOR TO YOU BRINGING THE CLAIM.
12. Privacy Policy
Please carefully read our Privacy Policy, which describes how DailyPay collects and uses certain information (provided, however, that the Wisely privacy policy will continue to govern the relationship between you, ADP, and the Issuing Bank regarding your Wisely account).
13. 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.
14. Intellectual Property
The Site, Site Information, the Service, and all other information and intellectual property referenced on or related to the Site and Service, 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 Service 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.
15. 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, INCLUDING ADP, THE ISSUING BANK AND THEIR RESPECTIVE AFFILIATES, AND EACH OF THEIR OWNERS, DIRECTORS, OFFICERS, AND EMPLOYEES 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 THE SERVICE; USE OF THE WISELY EWA PROGRAM; OR FROM YOUR BREACH OF THESE PROGRAM TERMS. WE RESERVE THE RIGHT, IN OUR SOLE DISCRETION, TO ASSUME THE EXCLUSIVE CONTROL OF THE DEFENSE OF ANY SUCH CLAIM.
16. Site Security
We maintain physical, electronic, and procedural safeguards reasonably designed to protect our Site, Site Information, Service, and systems. We make no guaranty that our Site, Site Information, Service, systems, or any related data transmissions are absolutely secure.
17. Governing Law
THE LAW, INCLUDING THE STATUTES OF LIMITATION, OF THE STATE OF NEW YORK WILL GOVERN THESE PROGRAM TERMS, THEIR INTERPRETATION AND ENFORCEMENT, 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.
18. Jurisdiction and Venue for Businesses
THIS SECTION 18 APPLIES TO ANY PERSON WHO HAS USED OR IS USING THE SITE, SITE INFORMATION, OR SERVICE 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 PROGRAM TERMS, OR THE INTERPRETATION, PERFORMANCE, OR BREACH OF THESE PROGRAM 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.
19. Export Control.
You may not use, export, import, or transfer the Site, Site Information, or Service except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Site, Site Information, or Service, and any other applicable laws. In particular, but without limitation, the Site, Site Information, and Service 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 Service, 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 Service 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.
20. 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.
21. Disclosures for California Consumers
DailyPay is not currently licensed by the Department of Financial Protection and Innovation (the “DFPI”). If the DFPI does decide in the future to license DailyPay, and/or require DailyPay to make modifications to these Program Terms, such developments may have no adverse impact on your then-existing obligations under these Program Terms. Although DailyPay is not licensed by the DFPI, any consumer is invited to share any comment and concerns about DailyPay or its product and practices with the DFPI at (866) 275-2677 (toll-free) or at the following URL: https://dfpi.ca.gov/file-a-complaint
22. Miscellaneous
You agree that no joint venture, partnership, employment, or agency relationship exists between you and DailyPay as a result of these Program Terms, or your use of the Site, Site Information or Service. You may not assign any part of your rights or duties under these Program 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 Program Terms (including a payment or economic term) is held invalid, unenforceable, or a violation of applicable law, then that term will be deemed severable from the remaining terms and in no way affects the validity or enforceability of the remaining terms, and, to the extent not prohibited by applicable law, the invalid, unenforceable, or noncompliant term may be replaced by DailyPay by terms that are valid, enforceable and compliant, and that come closest to expressing the intention of the invalid, unenforceable, or noncompliant term. These Program Terms are the final, complete, and exclusive agreement of the parties with respect to the subject matter they govern and supersede and merge all prior discussions between the parties with respect to such subject matter; nothing on the Site should be construed to alter such agreement. The titles in these Program Terms are used for convenience only and are not to be considered in construing them.
23. Agreement to Do Business Electronically and How to Provide Notice
You agree to conduct business with us electronically, including the acceptance of these Program 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 Site account, by SMS message (including text message), by regular mail, or any other method.
We will use the contact information we have on file for you to notify you, and it is your responsibility to notify ADP immediately of any changes to your contact information. If you wish to update your contact information, you may do so through the Site. If you have any difficulty doing so, you may call Wisely customer service at the number provided on the back of your Wisely card.
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 Service. 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 the Service.
You also agree to receive alerts about your activity, balances, payments, suspicious activities, and other matters involving your use of the Site or the Service 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 use of the Site or the Service. 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: wisely-ewa-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: wisely-ewa-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 the Wisely EWA Program, the Site, and Service.
24. Arbitration; Jury Trial Waiver; Class Action Waiver
Please read the following arbitration agreement in this Section 24 (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with DailyPay 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 Service, to any products sold or distributed through the Site or Service, 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 Service, 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 Program Terms or to any prior version of these Program 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 24.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 Program 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 DailyPay.
-
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 24.A. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Program Terms 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: wisely-ewa-support@dailypay.com. Your notice must include your name and address, the email address you used for the Wisely EWA Program, 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 24.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 these Program Terms to the contrary, you 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 to DailyPay at the following address: 55 Water Street, 42nd Floor, New York, New York 10041.
25. Definitions Used in These Program Terms
The following terms used in these Program Terms have the following meanings:
-
“ADP” means ADP, Inc. or its affiliates, the program manager of Wisely or the owner of the myWisely website and mobile application.
-
“Amount Provided” means the amount of the Program Earnings provided to you, minus our transaction fee, if any. To the extent a transaction fee applies, it will be deducted from the payments to you that we facilitate.
-
“DailyPay,” “our,” “us,” and “we” mean DailyPay, Inc.
-
“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 and has agreed to make the Wisely EWA Program available to you through the Site by DailyPay.
-
“Program Earnings” means the Unpaid Earnings we have agreed to make available to you before the Hiring Entity runs payroll. Depending on the manner in which you access Program Earnings, a specified transaction fee may be payable. Any transaction fee would be disclosed to you at the time you request to access the Program Earnings.
-
“Service” means any of the services provided by DailyPay via the Site for the Wisely EWA Program.
-
“Site” means our applications made available through the myWisely website (www.mywisely.com) or the myWisely app.
-
“Site Information” means 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 on the Site.
-
“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 Wisely EWA Program, information about you that you provide DailyPay, including information about your financial, personal, or professional activities.
-
“Wisely” means your card account program issued by the Issuing Bank (the bank reflected on the back of your Wisely card).
-
“Wisely EWA Program” a service that enables an employee or service provider to access, for a transaction fee, if any, unpaid earnings arising from regular pay and that is governed by these Program Terms.