DAILYPAY TERMS AND CONDITIONS
LAST UPDATED: July 22, 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”).
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 net pay via paper check, DailyPay may invoice Company for the amount of any 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.
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.
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.
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.
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) Cycle Addendum. If, at any time during the Term, the Company uses the Cycle Payment (as defined in the Cycle Addendum attached as Exhibit A hereto (the “Cycle Addendum”)) feature of the Service, the Cycle Addendum shall be deemed to be a part of this Agreement
k) 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.
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”).
1. Incorporating the Terms. 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) 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
(c) the Technology Charge under this Addendum shall constitute a “Company 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 (i) identifying the employee receiving a Cycle Payment, (ii) the amount of the Cycle Payment, (iii) Cycle Payment disbursement date and (iv) the employee bank account or pay card information for crediting the Cycle Payment. The Company may, at its sole election, direct DailyPay to make a Cycle Payment to an employee’s DailyPay User Account (such election, a “DPA Opt-In”). 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”); provided that Company will not be responsible for paying any Technology Charges solely with respect to Cycle Payments made to employees pursuant to the DPA Opt-In. 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 8(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) of 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.
|Method of Payment of Cycle Amount Payment||Technology 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||$10|
|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|