Updated: April 6, 2023
These Employer Pay-on-Demand Terms (“Terms”) forms your legal agreement with Fingercheck Pay On-Demand LLC (“Fingercheck”), and govern Fingercheck’s offering of Fingercheck’s Pay-on-Demand services (“POD Services”) to your employees. “We”, “Us, or “Our” refer to Fingercheck. “You” refers to you, either individually, or on behalf of a company, organization or other legal entity which you represent.
We may revise these Terms from time to time in our sole discretion. All changes are effective immediately when we post them. The applicable Terms shall be those that are then in existence when your employee seeks funding from Fingercheck through the POD Services. Your continued offering of the POD Services to your employees following the posting of revised Terms means that you accept and agree to the changes. You are expected to check this page from time to time, so you are aware of any changes, as they are binding on you. You can see when these Terms were last revised by referring to the “Updated” legend above.
Your offering of the POD Services may also be subject to additional policies, guidelines, or rules we post or make available at Fingercheck’s website or any Fingercheck App where the POD Services may be accessed (the “POD Services Portal”).
From time to time, your eligible employees may log into accounts they establish in the POD Services Portal and request access to some of their earned, but unpaid, wages prior to their next scheduled payday (“Unpaid Wages”).
Subject to the terms and conditions of these Terms, and the POD Services terms and conditions accepted by your employee, Fingercheck agrees to fund your employees’ requests for payment of Unpaid Wages prior to their next scheduled payday, and you agree to repay Fingercheck for such funding in accordance with these Terms.
In order for your employee to be eligible to obtain the POD Services: (a) you must accept these Terms; (b) you must have approved your employee’s enrollment in the POD Services, and you have not canceled such employee’s enrollment at the time of such employee’s request for Unpaid Wages, (c) the employee must have Unpaid Wages due from you during the applicable pay period; and (d) the employee must have received at least one paycheck from you using the Fingercheck platform prior to such employee’s use of the POD Services.
Fingercheck will limit the amount of Unpaid Wages that your employee can request prior to their next scheduled payday to 50% of their gross Unpaid Wages accrued during the applicable pay period at the time of their request. Fingercheck may also further limit the amount of Unpaid Wages that your employee may request, in addition to limiting the number of requests for Unpaid Wages that your employee may make during a specified time period. You may impose further limitations upon written request to Fingercheck.
We reserve the right in our sole discretion to refuse to approve your use of (or your employees’ use of), or access to (or your employees’ access to), the POD Services, without explanation, for any reason.
2. Requests for Unpaid Wages
Your employees may request Fingercheck to remit a portion of their Unpaid Wages, net of any applicable withholdings, by submitting such request via their account established in the POD Services Portal.
Upon your employee’s request for payment of Unpaid Wages to Fingercheck, we will seek your approval of such request. If you approve such request, your approval shall be your irrevocable agreement to repay us the amount of the Unpaid Wages we pay to your employee, in addition to any POD Services Fee (as defined below), in accordance with these Terms. We will not pay any Unpaid Wages requested by your employee without your approval.
If you approve your employee’s request for payment of Unpaid Wages, we will pay such Unpaid Wages (in the amount approved by Fingercheck) to your employee using the payment method designated by them.
If you decline your employee’s request for payment of Unpaid Wages, we will not pay the Unpaid Wages requested by your employee, and we will notify your employee of the decision.
We will charge your employee a transaction fee (the “POD Services Fee”) for each payment of an approved request for Unpaid Wages. The POD Services Fee may vary depending on the payment method that your employee selects. The applicable POD Services Fee will be disclosed to your employee before they approve any request for payment of Unpaid Wages.
The POD Services Fee will be added to the Unpaid Wages amount that you deduct from your employee’s next paycheck to repay the Unpaid Wages paid to your employee by Fingercheck (see Section 4 below).
For purposes of illustration only, if your employee requests to receive $100 in Unpaid Wages, and the applicable POD Services Fee is $2.99, you will deduct $102.99 (the $100 Unpaid Wage payment requested by your employee, plus the $2.99 POD Services Fee) from your employee’s next paycheck, and remit such amount to Fingercheck.
You may elect to pay some or all of the POD Services Fee on behalf of your employee. If you wish to do so, please contact Fingercheck in writing.
Fingercheck may charge other fees to your employee for additional POD Services which your employee elects to receive, but any such fees shall be disclosed to your employee prior to confirmation of their request to receive such additional POD Services.
In the event that Fingercheck pays Unpaid Wages to your employee under the POD Services, you shall deduct from such employee’s payroll the Unpaid Wages amount that Fingercheck pays to your employee (plus the applicable POD Services Fee). Such payroll deduction shall be made from such employee’s paycheck immediately subsequent to Fingercheck’s payment of Unpaid Wages to such employee.
In the event that you are unable to make the payroll deduction from such immediately subsequent paycheck due to administrative or technical errors, you will attempt to make the deduction from the next following paycheck. If you are unable to make the deduction from such next following paycheck, you will attempt no further payroll deductions related to such Unpaid Wage payment(s).
You shall ensure that the employee seeking payment of Unpaid Wages through the POD Services holds sufficient accrued wages at the next payroll date to pay Fingercheck the Unpaid Wages amount requested by such employee, plus the applicable POD Services Fee. If the employee does not have sufficient wages accrued on the next payroll date for you to pay Fingercheck the Unpaid Wages amount owed to Fingercheck (plus the applicable POD Services Fee), and you approve such employee’s request for payment of Unpaid Wages, you will nevertheless be obligated to Fingercheck for all amounts provided to the employee by Fingercheck via the POD Services, plus the applicable POD Services Fee. In this event, you expressly consent to allow Fingercheck to access and withdraw those funds directly from your bank account, up to the amount that Fingercheck advanced to the employee under the POD Services, plus the applicable POD Services Fee.
You expressly agree that the amount of any funds that you hold in the form of accrued employee wages that are due and owing to Fingercheck as a result of your employee’s use of the POS Services, plus the amount of the applicable POD Services Fee, are held in trust for Fingercheck and in which Fingercheck holds a first lien position security interest.
You are liable to reimburse Fingercheck for the Unpaid Wages paid to the employee by Fingercheck via the POD Services that are rightfully owing to Fingercheck (plus the applicable POD Services Fee), regardless of when or why the employee’s accrued wages were paid to the employee when those funds are due and owing to Fingercheck. You agree that upon notification of the employee’s request for payment of Unpaid Wages via the POD Services, and your approval of such request, no further notification to you is required for the provisions of this paragraph to apply.
5. Payroll Card Issuance
Following the employee’s enrollment in the POD Services, you may elect that your employee receive a Mastercard® Payroll Debit Card (“Payroll Card”) issued by our financial institution partner (“Payroll Card Issuer”). The Payroll Card is subject to the separate terms and conditions of the Payroll Card Issuer that the employee will receive with the Payroll Card. The Payroll Card may be used at merchants that accept Mastercard debit cards.
The Payroll Card will only be used for the employee to receive Unpaid Wages via the POD Services that they request using the “Instant” payment option.
The employee will not receive their normal payroll from you on the Payroll Card, unless they designate the Payroll Card with you as the preferred bank account to receive their payroll from you.
6. Your Disputes with Employees
We will not resolve, or otherwise become involved in, any disputes between you and your employee regarding the amount of Unpaid Wages that may or may not be owed to them. Resolving such disputes with your employee is your responsibility, and you must work directly with your employee to resolve the dispute.
You must notify Fingercheck of any dispute with your employee related to the amount of Unpaid Wages owed to them. You agree not to approve payment of Unpaid Wages by Fingercheck if you have reason to believe that you may withhold or not pay any accrued wages to an employee.
7. Employee Information
If your employee has successfully enrolled in the POD Services and requested payment of Unpaid Wages, your employee has accepted Fingercheck’s terms and conditions governing such employee’s use of the POD Services. By accepting such terms and conditions, your employee has provided unqualified consent for you to disclose their personal and employment information to Fingercheck that Fingercheck requires to provide them the POD Services.
This personal and employment information information includes, but is not limited to, information concerning your employee’s (a) name, (b) employee and tax identification numbers, (c) date of birth, (d) contact information (such as email and mobile phone number), (e) gross and net pay and details about tax and other withholding, (f) time and attendance information, and (g) bank account and routing number information (collectively, the “Employee Information”).
By sharing any Employee Information with Fingercheck, you are authorizing Fingercheck to use such Employee Information as necessary to provide the POD Services. Fingercheck will only use Employee Information that it believes, in its sole discretion, is necessary or required to provide the POD Services and any other service that your employee has requested.
You also authorize Fingercheck to share Employee Information with the Payroll Card Issuer (and the Payroll Card Issuer’s service providers) to the extent necessary to provide the Payroll Card to your employees that enroll in the POD Services.
You must provide the Employee Information to Fingercheck in order to allow your employee to receive Unpaid Wages payments from Fingercheck. You may decline to provide such Employee Information to Fingercheck, but your employee’s request for a payment of Unpaid Wages may be rejected by Fingercheck.
As between Fingercheck and you, Fingercheck shall own any information collected from, or provided by, your employees in connection with your employees’ use of the POD Service (including, but not limited to, personal and employment information provided by your employees to Fingercheck, and any transaction information generated by your employees’ use of the POD Services).
8. Fingercheck Marketing to Your Employees
9. Your Representations and Warranties
You represent and warrant the following:
To the fullest extent permitted by law, Fingercheck and associated parties involved with the POD Services shall not be 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 (a) the use, inability to use, or the results of the use of the POD Services or the POD Services Portal and any websites or other content linked to it, (b) any materials, information, product or services related to the POD Services or the POD Services Portal or information contained or found there, and (c) these Terms, or any acts under these Terms or in furtherance of these Terms, including any Unpaid Wages payments or financial transfers and transactions (except for our gross negligence or willful misconduct), whether based on warranty, contract, tort or any other legal theory and whether or not Fingercheck knew or was informed or advised of the possibility of such loss or damages.
This limitation shall include any damage or corruption to any hardware, including as a result of any computer virus or infiltration or data breach. You are responsible for maintaining and protecting all of the information provided, transmitted, uploaded, imported, or made accessible by you and the security of your computer or other device used as part of the POD Services.
In no event will Fingercheck’s liability for any damages exceed the total amount of POD Services Fees, if any, paid by your employees in connection with the transaction(s) of the POD Services then at issue.
Fingercheck makes no representations as to the suitability of the POD Services to your employees or your employees’ financial needs.
No information provided by Fingercheck shall be deemed to be legal or tax advice. The POD Services Portal and the POD Services provides general information only and is not professional advice of any kind. Before making any final decisions or implementing any financial strategy, your employees should solicit advice from their legal, accountant or financial adviser.
Fingercheck will make every effort to maintain the POD Services Portal but is not responsible for any disruption regardless of duration or magnitude, and shall not be liable for losses related to the inability to access the POD Services Portal.
The POD Services and POD Services Portal and their accompanying services, features, and functionality are furnished “as is,” “at your own risk,” and “as available,” without any warranty, express or implied, whatsoever. Fingercheck makes every effort to ensure the correct functionality of the POD Service Portal, and that the information provided in the POD Services Portal and POD Services generally is accurate, but it assumes no responsibility for the accuracy, merchantability or completeness of such functionality or accuracy.
You agree to indemnify and hold Fingercheck and its affiliates, directors, officers, employees, agents, representatives and third-party service providers harmless, and to defend and hold each of them harmless, from any and all claims, actions, liabilities, damages, and costs which may arise from your involvement in, or your employees’ use of, the POD Services or the POD Services Portal, including by the use of any third-party links.
Although we reserve the right to communicate with you in a paper format, you agree that we may communicate in electronic format and such will be considered to be “written” if so, required under these Terms or applicable law or regulation. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically or that are posted via the POD Services and POD Services Portal satisfy all legal requirements that such communications be in writing if such requirements are applicable. You must send notices to us at email@example.com.
These Terms shall be governed by and interpreted in accordance with the laws of the United States. To the extent state law applies to these Terms, these Terms will be governed by the laws of the State of New York, without reference to its conflict-of-laws principles.
To the extent permitted under applicable law, you and Fingercheck hereby irrevocably agree to the following provisions:
Dispute Resolution and Arbitration. Any dispute, claim, or controversy between you and us arising in connection with, or relating in any way to, these Terms, the POD Services or the POD Services Portal (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination or expiration of these Terms) will be determined solely by mandatory binding arbitration. In arbitration there is no judge or jury and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow the terms of these Terms as a court would.
Arbitration Process Rules. The arbitration shall be administered by the American Arbitration Association (the “AAA”), pursuant to the then-current Commercial Arbitration Rules of the AAA (“Rules”), and shall be finally settled by one (1) arbitrator who shall be appointed in accordance with the Rules. Either party may initiate arbitration by submitting a written request for arbitration to the AAA and the other party, setting forth in reasonable detail the subject of the dispute and the relief requested. The arbitration shall be conducted in accordance with the Rules, The arbitrator shall have no power or authority to amend or disregard any provision of this paragraph or any other provision of these Terms. The arbitration hearing shall be commenced promptly and conducted expeditiously. All arbitration pleadings, documents, deliberations, proceedings, decisions, and awards (and the actions of the arbitrator, administrators, and parties with respect to the arbitration) shall be confidential. The parties will participate in the arbitration in good faith, and will share equally in the administrative costs of the arbitration; provided, however, that each party will pay its own attorneys’ fees (subject to the next sentence). The arbitrator may, in his or her discretion, award the prevailing party its attorneys’ fees and out-of-pocket expenses, including its share of the arbitration fees. The arbitrator will have the authority to apportion liability between the parties, but will not have the authority to award any damages or remedies not available under, or in excess of, the express terms of these Terms. Promptly following the conclusion of the hearing, the arbitrator shall prepare and distribute to the parties an opinion describing the basis for judgment and award and containing an opinion setting forth the reasons for the giving or denial of any award. The decision of the arbitrator (i) shall be final and binding on the parties; and (ii) may be entered and enforced in any court of competent jurisdiction.
No Class Actions. Neither you or Fingercheck will have the right to: (a) participate in a class action in court or in arbitration, either as a class representative, class member or otherwise, (b) act as a private attorney general in court or in arbitration, or (c) join or consolidate claims by or against you with claims by or against any other person. The arbitrator shall have no authority to conduct any such class action, private attorney general or multiple-party proceeding.
Special Statute of Limitation. Any arbitration must be commenced by filing a demand for arbitration within 2 years after the date the party asserting the claim first knows or reasonably should know of the act, omission, or default giving rise to the claim; and there shall be no right to any remedy for any claim not asserted within that time period. If applicable law prohibits such limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law.
Exception. Nothing in this Section 14 shall be deemed to waive, preclude, or otherwise limit either of our rights, at any time, to seek injunctive relief in a court of law.
These Terms do not create any joint venture, partnership, employment, or an agency relationship between or among Fingercheck, you, or your employees.
If any portion of these Terms is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, those Terms that are found unlawful or unenforceable shall be stricken from these Terms, and the remainder of these Terms shall nevertheless remain in force.