(A) This Agreement forms the legal agreement and governs the use of Fingercheck Pay On-Demand LLC’s (“Fingercheck”) Pay-on-Demand services (“POD Services”). A separate agreement addresses the agreement with your employee.
These Terms may be revised and will be effective upon their publication to the Fingercheck website or any Fingercheck App of where the POD Services may be accessed (together with the “POD Services Portal”). The applicable Terms for your use of the POD Services shall be those that are then in existence when your employee seeks funding from Fingercheck through the POD Services Portal. We reserve the right in our sole discretion to refuse to approve an employer’s use of or access to the POD Services, without explanation, for any reason.
(B) You acknowledge and agree that you will: (i) maintain accurate personnel files for any employee that takes part in the POD Services; (ii) review and confirm an employee’s accrued earnings prior to permitting that employee to use the POD Services and receive funding; (iii) remain solely responsible and liable for the funding provided by Fingercheck via the POD Services; and (iv) promptly notify Fingercheck, in writing, if you become aware of any unauthorized, illegal, or malicious access or use of any account using the POD Services. You further agree to promptly update all your information whenever the information provided to us is no longer accurate. You will also agree not to authorize an employee’s request for funding via the POD Services if you have reason to believe that the funds sought will be used for an improper purpose, if the information provided to Fingercheck is incorrect, or if the employee has or is about to be terminated from its employ or may otherwise not receive pay for the employee’s accrued, unpaid, wages.
(C) Fingercheck may, at any time and without prior notice, modify, alter, or update this Agreement and its agreements with the employee in connection with the POD Services. Your authorization to Fingercheck to allow an employee to obtain funding through the POD Service will constitute your acceptance of any revisions to this Agreement, or its policies, guidelines, or rules then in place at Fingercheck’s website or across the POD Services Portal.
(D) Your employee has authorized us to make any inquiries we consider necessary to verify and validate his or her identity and employment. These inquiries may include seeking confirmation of an employee’s social security number and taxpayer identification number and confirming the employee’s mail and email address, or financial instruments. Fingercheck also has authorization for to obtain information concerning your (i) name, (ii) employee and tax identification numbers, (iii) contact information (email and mobile phone number), (iv) gross and net pay and details about tax and other withholding, and (v) bank account and routing number. Fingercheck will request only the information that it believes, in its sole discretion, is necessary or required to perform the functions and services associated with the POD Services and any other service that you have requested. Fingercheck will not share this information unless required under any law or regulation, and with its own service providers, as necessary.
(E) Fingercheck has no responsibility to and does not retain information concerning transactions with your employee once the funds have been repaid unless otherwise required by law or regulation.
The POD Services Portal and its services, features, and functionality available through the Site are furnished to the employee “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 and information at the POD Services Portal and POD Services generally, it assumes no responsibility for the accuracy, merchantability or completeness found there. The POD Services Portal and the POD Services generally provides general information only and not professional advice of any kind.
2. Notice to Employer
Upon an employee’s request for funding, we will notify you of the funding request and request confirmation that funding is available based on the employee’s unpaid but accrued wages that will be paid at the next payroll, and in the ordinary course. You may deny confirming such information but your employee’s funding request cannot be processed.
3. Limitation of Liability.
(A) 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 (i) the use, inability to use, or the results of the use of the POD Services and any websites or other content linked to it, (ii) any materials, information, product or services related to the POD Services Portal or information contained or found there, and (iii) this Agreement, or any acts under this Agreement or in furtherance of this Agreement, including any funding, payments or financial transfers and transactions (except for 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.
(B) 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 using the POD Services Portal 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 fees, if any, paid by you in connection with the transaction of the POD Services then at issue.
(C) No information provided by Fingercheck shall be deemed to be legal or tax advice to either the employer or employee.
There is a flat fee in the amount shown at the time the request for funding is made (the “POD Services Fee”). Fingercheck anticipates that the fee shall typically be $2.99 per transaction, regardless of the amount of the POD funding you seek (within the POD Services limits). Unless you desire to offer this service free to your employees, the POD Services Fee will be deducted from the amount requested. Should you decline to absorb the cost of any transaction fee associated with your employee’s use of the POD Services, the amount of the employee’s requested funding will include the POD Services Fee both of which will be deducted from the employee’s payroll pay and paid to Fingercheck.
You understand, acknowledge, and agree that payment for amounts advanced to your employee under the POD Services shall be your responsibility to have deducted from the employee’s payroll that is due to the employee immediately subsequent to Fingercheck’s funding of that employee’s POD Services request and paid to Fingercheck., This obligation includes ensuring that the employee seeking funding through the POD Services holds sufficient accrued wages at the next payroll date to pay Fingercheck the amounts funded, plus the POD Services Fee. Failing the employees’ payment to Fingercheck of the amounts funded, you will be obligated for all amounts advanced to the employee, including the POD Services Fees. 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.
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 funding provided to an employee’s use of the POS Services, plus the amount of any 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 funding to the employee provided by Fingercheck via the POD Services that are rightfully owing to Fingercheck, 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 funding via the POD Services and your confirmation that the employee qualifies for such funding, no further notification to you is required for the provisions of this paragraph to apply.
7. POD Services Representations
You agree not to consent to any funding via the POD Services in amounts of the applying employee’s accrued wages due in the next payroll or wages paid.
8. Intellectual Property
The POD System and POD Systems relevant intellectual property referenced on there, including patents, copyrights, logos, trademarks, software code, and trade secrets are legally owned by Fingercheck or third parties.
Fingercheck will make every effort to maintain its POD Services 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.
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 of your employee’s use of the POD Services, including by the use of any third-party links.
11. Site Security
Fingercheck, as commercially reasonable and practicable, maintains physical, electronic, and procedural safeguards and protection in accordance with applicable laws. Unfortunately, no data transmission over the Internet can be guaranteed to be absolutely secure. In the event we learn of a breach of the confidentiality or security of the POD Services or any associated information, we will reasonably attempt to notify you as required by law so you can take appropriate steps. Unless you have directed otherwise, we may notify you under such circumstances using your most current email address or phone number on record with us.
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.
13. Jurisdiction and Governing Law
Any claim relating to the POD 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 this Agreement or related to your role with an employee of the POD Services, including but not limited to the POD Services Portal, will be heard exclusively in New York City. You 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.
You understand and agree that, in addition to monetary damages, Fingercheck will be entitled to injunctive and equitable relief upon the breach of any provision of this Agreement, as appropriate.
YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY
YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A CLASS REPRESENTATIVE IN ANY LAWSUIT INVOLVING ANY DISPUTE in connection with the POD Services.
(A) This Agreement does not create any joint venture, partnership, employment, or an agency relationship between Fingercheck, you, any employee, and any employer, employee or party involved in the POD Services.
(B) If any portion of these Terms of Service is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, those Terms of Service that are found unlawful or unenforceable shall be stricken from these Terms of Service.
15. Agreement to Do Business Electronically
Except as provided for herein otherwise, you agree to do business with us electronically. This Agreement and any other agreement you have with us may be executed by electronic signature, which means by an electronic sound, symbol, or process, attached to or logically associated with this Agreement or any other agreement with us.
You agree to receive any information, disclosures, notices, documents, or other records electronically. With respect to this Agreement and any other agreement you may have with us, 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 under applicable law.
16. Employee’s Disputes with Its Employer
You must notify Fingercheck of any dispute with your employee or any instance where accrued and earned but not yet paid wages may be withheld or not paid. Employer agrees and acknowledges that Fingercheck will be repaid for funds provided under the POD Services regardless of the outcome of any such dispute. You agree not to approve an employee’s funding request from the POD Services if you have reason to believe that accrued wages may be withheld or not paid to the employee, for any reason.