Terms of Use

TERMS OF USE

The following terms of use ("Agreement") govern your use of www.trydailypay.com (the "Site") and/or any of the services (the "Services") offered by DailyPay, Inc. ("DailyPay") on and through our Site, including use of any the Site’s information and data, and participation in any public areas which may exist in the Site (the "Public Areas").

Please read the requirements of this Agreement carefully. Your use of the Site and/or any of the Services constitutes your agreement to comply with the terms of this Agreement. If you cannot agree to and comply with this Agreement and its requirements, you are expressly prohibited from use of the Site and/or the Services and must exit the Site.

Use of Site

You may view and use the Site and/or any information contained therein only in accordance with the terms of this Agreement. You may not modify, distribute, publish, license, create derivative works from, transfer or sell any information or content contained on the Site. The Site may be used only as contemplated by this Agreement. You agree to use the Site only for lawful purposes and you acknowledge that your failure to do so may subject you to civil and criminal liability all as determined by applicable law.

If you wish to use our Services, you will need to provide us with certain information, including information about your identity and banking information. You will also need to create a user ID and a password to protect your account information. With your permission, we may also collect other third party data about you (collectively, the "Personal Information").

As a registered user ("User") of the Site, you represent and warrant that: (i) you are 18 years of age or older; (ii) the Personal Information is true, accurate, current and complete; (iii) you will maintain and update Personal Information to keep it true, accurate, current, and complete; (iv) the Personal Information belongs to you and does not infringe or violate any patents, copyrights, trademarks or other intellectual property, proprietary or privacy rights of any third party; and (v) you own or have obtained the right to all of the intellectual property rights subsisting in the Personal Information provided, and have the right to provide DailyPay the license granted herein to the Information.

If you create an Account for a Business, then the Business will become our customer ("Customer"). Please be aware that this Agreement is a binding legal agreement between the Customer named in the Account and DailyPay or any of its affiliates. We reserve the right in our sole discretion to refuse to approve the creation of any account.

User must not allow anyone other than its authorized agents acting on behalf ("Authorized User") to access and use its Account. User acknowledges and agrees: (i) to provide accurate and complete Account and login information when creating an Account; (ii) to keep all Account login details and passwords secure at all times; (iii) that Users remain solely responsible and liable for the activity that occurs in connection with User’s Account; and (iv) to promptly notify DailyPay in writing if User becomes aware of any unauthorized access or use of its Account. If User wishes to delete its Account, User may send an email request.

Changes to Agreement and Additional Rules of Usage

DailyPay reserves the right, at any time and without prior notice, to modify, alter or update this Agreement. The date of the most recent revision will appear on this page. Your continued access to the Site and use of the Services by you will constitute your acceptance of any changes or revisions to this Agreement. DailyPay also reserves the right to post, from time to time, additional rules of usage that apply to specific parts of the Site, which may be posted in the relevant parts of the Site, and will be identified. Your continued use of the Site constitutes your agreement to comply with these additional rules.

Disclaimer

All information (hereinafter, the "Information") posted on the Site is subject to change or removal without notice. DailyPay may make changes to the materials, products, features and services available at the Site at any time without notice. You may not use the Information for any commercial purpose, including without limitation: (I) distribution (electronically or otherwise); (II) resale; or (III) display, etc.

Information, Services, and other material available through the Site are furnished "As Is", "at Your Own Risk" and "As Available", without any warranty whatsoever. Although DailyPay has attempted to provide accurate Information on the Site, DailyPay assumes no responsibility for the accuracy, merchantability or completeness of the Information, Services or other material at the Site. The Information and all other materials on the Site are provided for general information purposes only and do not constitute professional advice of any kind.

All other warranties, express or implied, including any warranties of merchantability, fitness for any particular purpose, or non-infringement of intellectual property are specifically excluded and disclaimed. DailyPay does not warrant that the Information will meet user’s requirements and that the operation of the Services will be uninterrupted or error free, or that the Site or the server that makes it available are free of viruses or bugs.

DailyPay’s obligations with respect to its products and services are governed solely by the agreements under which they are provided and nothing on the Site should be construed to alter such agreements. The materials and Services at the Site may be out of date and DailyPay makes no commitment to update the materials and Services at the Site.

User acknowledges that (i) DailyPay does not operate as an archive or file storage service and we do not store all of the Data that User may provide, upload, import, or otherwise generate during User’s use of Service; (ii) User is solely responsible for the backup of its Data; and (iii) User will lose access to any Data the User deletes.

Limitation of Liability

In no event will DailyPay, its suppliers, or other third parties mentioned at the Site be liable for any damages whatsoever (including, without limitation, 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, any websites or other content linked to the Site, or any materials, information, product or service contained at any or all such sites, 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 materials, Information or Services from the Site results in the need for servicing, repair or correction of equipment or data, you assume all costs thereof. For the avoidance of doubt, User is responsible for maintaining and protecting all of the information provided, transmitted, uploaded, imported or made accessible by using the Site. DailyPay will not be liable for any loss or corruption of such information, or for any costs or expenses associated with backing up or restoring any of such information.

Privacy Policy

In addition to reviewing this Agreement, you should also review our Privacy Policy ("Privacy Policy"), which is incorporated by reference into this Agreement, to better understand how we collect and use personal information. Your use of the Site and the Services constitutes your agreement to its terms and conditions.

Intellectual Property

The Site, all information and intellectual property referenced on the Site, including, without limitation, patents, copyrights, logos, trademarks and trade secrets are legally owned by DailyPay or third parties. These rights apply to the Information, computer code of the Site, graphical design, products, company names, etc. All contents of the Site are protected by copyright and trademark rights, except as specifically permitted herein.

Links to Third-Party Websites and/or Third Party Software Products

Links on the Site to third-party websites and/or software products are provided as a convenience to you. If you use these links or software products, you might leave the Site. Some of the third parties software products may require you to have, and actually be signed-in to, an active user account for such third party software product.

DailyPay has not reviewed any of these third-party sites and/or the applications and/or software products and does not control and is not responsible and/or liable for any of these sites or their content. Thus, DailyPay does not endorse or make any representations about them, or any information, software or other products or materials found on them, or any results that may be obtained from using them. If you decide to access any of the third-party websites and/or applications and/or software products linked to the Site, you do this entirely at your own risk and DailyPay no liability for such use.

Ownership of the Site and Information

The Site is expressly owned and operated by DailyPay. Unless otherwise noted, the design and content features on the Site, including information and other 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 thereof (collectively: the "Information"), are owned by DailyPay or its affiliates or are licensed by DailyPay from third parties. The Site, each as a whole and in part, and the Information is protected by copyright, trademark, service mark, trade name, and other intellectual property and other proprietary rights, and all other applicable rights are reserved and User shall abide by those laws. By furnishing Information, DailyPay does not grant any licenses to or transfer any title rights for any copyrights, patents or any other intellectual property rights.

Site Availability

DailyPay shall not be responsible for any disruption to the Site, regardless of length. DailyPay will not be liable for losses related to User’s inability to access content due to disruptions of the Site. DailyPay shall be excused from its performance of any obligations under this Agreement which are prevented or interfered with due to acts or conditions beyond the reasonable control of DailyPay.

Indemnification

You agree to indemnify DailyPay and its affiliates, directors, employees, agents, representatives and third party service providers, and to defend and hold each of them harmless, from any and all claims, actions, liabilities, damages, and costs (including attorney’s fees) (collectively, "Claims") which may arise from your unauthorized use of the Site, Services or Information obtained through use of the Site and/or your breach of this Agreement. DailyPay reserves the right to assume the exclusive control of any such defense of any such Claim.

The Security of the Site

We maintain physical, electronic, and procedural safeguards and personnel policies, consistent with applicable laws that are designed to guard the Site, our systems and Information provided by our Users. Unfortunately, no data transmission over the Internet can be guaranteed to be absolutely secure. In the event of a breach of the confidentiality or security of your personal information, we will reasonably attempt to notify you as necessary so you can take appropriate protective steps. Unless you indicate otherwise, we may notify you under such circumstances using your most current email address on record with us.

Electronic Communications

When you visit the Site or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically or posted on the Site satisfy any legal requirement that such communications be in writing if such requirements are applicable.

Jurisdiction and Governing Law

DailyPay makes no representation that the content, the Information, or the Services offered through the Site are appropriate, available or legal in any particular location. Those who choose to access the content, the Information, and the Services offered through the Site do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.

Those who access the Site from locations outside New York are responsible for compliance with applicable local laws. Any claim relating to the Site or use of the Site or the Services will be governed by and interpreted in accordance with the laws of the State of New York, without reference to its conflict-of-laws principles. Any dispute arising out of or related to your use of the Site will be brought in, and you hereby consent to the exclusive jurisdiction and venue in, the competent courts in New York. You hereby agree to waive all defenses of lack of personal jurisdiction and forum non-conveniens and agree that process may be served in a manner authorized by applicable law or court rule. If any term or provision of this legal notice is for any reason held to be invalid, such invalidity shall not affect any other term or provision, and this legal notice shall be interpreted as if such term or provision had never been contained in this legal notice.

The User understands and agrees that, in addition to monetary damages, DailyPay shall be entitled to equitable relief where appropriate upon User’s breach of any portion of this Agreement.

Miscellaneous

User agrees that no joint venture, partnership, employment or agency relationship exists between User and DailyPay as a result of this Agreement and/or User’s use of the Site. User may not assign any part of its rights and obligations under this Agreement without DailyPay’s prior written consent. No waiver of any obligation or right of either party shall be effective unless in writing, executed by the party against whom it is being enforced. The terms of this Agreement are severable and may be construed to the extent of their enforceability in light of the parties’ mutual intent. The titles and subtitles in this Agreement are used for convenience only and are not to be considered in construing it.

DailyPay does not operate as a broker or an accounting, financial or investment planner or advisor. We do not provide financial, business, accounting, securities, tax or legal advice. Your use of the service is at your sole discretion and risk.

To the full extent permissible, DailyPay shall not be liable for any indirect, exemplary, special, consequential, or incidental damages of any kind arising under these terms or out of your use of, or inability to use, the Services, even if DailyPay has been advised of the possibility of such damages. Some jurisdictions do not allow the limitation or exclusion or liability for incidental or consequential damages, so the above limitations may not apply to you.

In no event shall the liability of DailyPay for any damages arising under these terms or out of your use of, or inability to use, the Services exceed the total amount of fees, if any, paid by you to DailyPay for using the Services during the one (1) month prior to you bringing the claim.

Electronic Signature

With respect to this Agreement, you hereby waive any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law.

General

DailyPay may revise these Terms of Use at any time by updating this page on the Site and in such event your continued use of the Site, shall constitute your acceptance of such updated Terms of Use. Accordingly, you should visit this page from time to time to review the then-current Terms of Use because they are binding on you. Certain provisions of these Terms of Use may be superseded by expressly designated legal notices or terms located on particular pages at the Site.

Third Party Account Information

You agreed to provide usernames, passwords and other log-in credentials (collectively, “Account Information”) and grant a non-exclusive, royalty-free, fully-paid license to use that Account Information for the purpose of providing the Services. The Company may use and store the data and information made available by the platforms to you through use of your Account Information that relates to your usage of, and interactions and transactions with, platforms in accordance with this Agreement and our Privacy Policy. You represent that you are entitled to submit your Account Information to the Company for use for this purpose, without any obligation by the Company to pay any fees or be subject to any restrictions or limitations. By using the Service, you expressly authorize the Company to access your Account Information, on your behalf as your agent. You hereby authorize and permit the Company to use and store all Account Information submitted by you to log-in to the Platforms and download and store your Account Information. For purposes of this Agreement, you grant the Company a limited power of attorney, and appoint the Company as your attorney-in-fact and agent, to access the platform and retrieve and use your Account Information with the full power and authority to do and perform each thing necessary in connection with such activities as you could do in person. You acknowledge and agree that when the Company is retrieving Account Information, the Company is acting as your agent, and not as an agent or on behalf of the platform operator. You understand and agree that the Service is not sponsored or endorsed by any third party Platform operators. The Company is not responsible for any errors or issues of any kind arising from the provision to the Company of inaccurate or incomplete Credential Information or Account Information.

Commercial Terms

The following commercial terms are agreed and entered into each occasion DailyPay (“Purchaser”) advances funds to a DailyPay, Inc. client (“Seller”):

Sale; Purchase Price; Billing; Reserve; Authorization

Seller shall offer to sell to Purchaser as absolute owner the Seller’s Accounts. Purchaser shall purchase from Seller such Accounts as Purchaser determines to be Eligible Accounts.

Purchaser shall pay the Purchase Price, less any amounts due to Purchaser from Seller within one (1) Business Day of the Purchase Date, whereupon such Account shall be deemed purchased hereunder.

Purchaser may apply a portion of any Purchase Price to the Reserve Account in the amount of the Reserve Shortfall.

Subject to the terms and conditions of this agreement, Purchaser is authorized to purchase Accounts when Seller is a registered user of Purchaser’s Services.

Fees and Expenses. Seller shall pay to Purchaser:

Daily Transfer Fee ("Transfer Fee"). The Transfer Fee, payable on the date on which a Purchased Account is paid in full.

Applicable Bank Fees: Ancillary fees including but not limited to return payments, misdirected payments, stop payments.

Security Interest

Seller grants to Purchaser a continuing first priority security interest in and to the Collateral. Upon request, and provided the Seller is not in default hereunder, the Purchaser will subordinate its lien on the Collateral other than the Accounts Receivable in connection with other institutional financing obtained by Seller.

Notwithstanding the creation of the above security interest, the relationship of the parties shall be that of Purchaser and Seller of accounts, and not that of lender and borrower.

Authorization to Purchaser.

Seller hereby releases and exculpates Purchaser, its officers, employees and designees, from any liability arising from any acts under this agreement or in furtherance thereof whether of omission or commission, and whether based upon any error of judgment or mistake of law or fact, except for willful misconduct. In no event will Purchaser have any liability to Seller for lost profits or other special or consequential damages.

In order to satisfy any of the Obligations, Purchaser is hereby authorized by Seller to initiate electronic credit entries through the ACH system to Seller’s Account or any other deposit account maintained by Seller wherever located. Seller may only terminate this authorization by giving Purchaser prior written notice of termination.

Covenants By Seller

Seller shall not create, incur, assume, or permit to exist any Lien upon or with respect to any Collateral now owned or hereafter acquired by Seller.

Account Dispute

Seller shall notify Purchaser promptly of and, if requested by Purchaser, will settle all disputes concerning any Purchased Account, at Seller’s sole cost and expense.

Perfection of Security Interest

Seller shall execute and deliver to Purchaser such documents and instruments, including, without limitation, UCC financing statements, as Purchaser may request from time to time in order to evidence and perfect its security interest in any collateral securing the Obligations.

Representations and Warranties

To induce Purchaser to enter into this agreement and to purchase the Purchased Accounts hereunder, Seller hereby represents and warrants to Purchaser as follows (each of which representations and warranties shall be deemed to be continuing and to have been restated and reaffirmed on each occasion that Purchaser advances funds to Seller): it is fully authorized to enter into this agreement and to perform hereunder; this agreement constitutes a legal and valid obligation that is binding upon it and that is enforceable against it in accordance with the terms hereof; there are no pending actions, suits, or other legal proceedings of any kind (whether civil or criminal) now pending (or, to Seller’s knowledge, threatened) against Seller, the adverse result of which would in any material respect affect the property or financial condition, or threaten the continued operations, of Purchaser; Seller has not conducted business under or used any other name, whether legal or fictitious,

Amendment

Neither this agreement nor any provisions hereof may be changed, waived, discharged, or terminated, nor may any consent to the departure from the terms hereof be given, orally (even if supported by new consideration), but only by an instrument in writing signed by all parties to this agreement. Any waiver or consent so given shall be effective only in the specific instance and for the specific purpose for which given.

Conflict

Unless otherwise specifically stated in any other agreement entered into between Purchaser and Seller hereafter, if a conflict exists between the provisions of this agreement and the provisions of such other agreement, the provisions of this agreement shall control.

For the purposes hereof, notices hereunder shall be sent to the following electronic mail address: help@trydailypay.com

Any dispute related to a DailyPay purchase shall be subject to resolution by arbitration exclusively at the request of any party thereto and in accordance with these Terms of Service.

Payment Account Information

Seller shall notify Purchaser immediately if it changes its payment information in his platform account from DailyPay to a different bank account. Purchaser will debit from Seller’s bank account, or any other previously provided bank account, any shortfall after the Payment Date. For the avoidance of doubt, you hereby authorize the Company to auto-debit your bank account for any payment shortfall arising from a change in your payment instructions in your platform account.

For the avoidance of doubt, you hereby authorize the Company to use its current or previously granted access to your platform account to auto-debit payment shortfalls caused by a change in your payment information in your platform account from DailyPay to a different bank account.

DailyPay reserves the right, in its sole discretion, to delay or eliminate payment to your account if it believes there has been fraudulent behavior and/or if there is suspicious activity surrounding your account, registration, or any subsequent activity by you or a third party.

Right of Offset

DailyPay reserves the right to offset any negative balance on one particular platform with payments on any other platform. DailyPay will offset any negative balance prior to making any payment to Seller.

Definitions

The following terms used herein shall have the following meanings. All capitalized terms not herein defined shall have the meaning set forth in the Uniform Commercial Code

  • “Balance Subject to Funds Usage Fee” - the unpaid Face Amount of all Purchased Accounts minus the Reserve Account.
  • “Business Day” – a day of the week other than a Saturday, Sunday, or a holiday under which banks are required or permitted to be closed.
  • “Collateral” - all now owned and hereafter acquired personal property and fixtures, and proceeds thereof, (including proceeds of proceeds)
  • “Credit and Collection Services” - shall include the following services performed by Purchaser on behalf of Seller as a result of the purchase of accounts hereunder:
  • “Eligible Account” - an Account which is acceptable for purchase as determined by Purchaser in its sole discretion.
  • “Face Amount” - the face amount due on an Account.
  • “Transfer Fee - the fee earned by Purchaser in consideration of its performance of Services
  • “Lien” - any interest in property securing an Obligation owed to, or a claim by, a person other than the owner of the property, whether such interest is based upon common law, statute, or contract.
  • “Purchase Price” - the unpaid Face Amount of an Account at the time of purchase.
  • “Purchased Accounts” - Accounts purchased hereunder which have not been Repurchased.
  • “Purchase Date” – The date on which Seller has been advised in writing that Purchaser has agreed to purchase an Account.
  • “Required Reserve Amount” - the Reserve Percentage multiplied by the unpaid Face Amount of Purchased Accounts.
  • “Reserve Account” - an account or accounts on the books of Purchaser reflecting transactions hereunder.
  • “Reserve Percentage” – Ten (10%) percent, which percent may be revised at any time by Purchaser to protect Purchaser with regard to (i) any indebtedness owing by Seller hereunder, or (ii) possible returns, claims or defenses of any Account Debtor.
  • “Reserve Shortfall” - the amount by which the Reserve Account is less than the Required Reserve Amount.
  • “Seller’s Deposit Account” - any demand deposit account maintained by Seller, or represented by an employee of Seller to be maintained by Seller, wherever located.

Disclaimer

DailyPay is not affiliated with any platform unless explicitly stated. DailyPay makes no representation of the accuracy of any data provided by the platform. User acknowledges that DailyPay is an independent company, and as such, acknowledges the risks associated with that.

This Terms of Use Agreement was last updated: June 12, 2016.