Earned Wage Access

Earnifi Earned Wage Access And Subscription Services Agreement

Please read this Earnifi Earned Wage Access And Subscription Services Agreement (the “Agreement”) carefully, as it contains important information about the legal rights and obligation that we and you have in connection with our services, which are described below (the “Services”). As used in this Agreement, the words “you” and “your” will refer to the person who accepts these Terms and who we may allow to utilize the Services. The words “we,” us,” and “our,” refer to D5 Cash (d/b/a Earnifi).

This agreement contains an arbitration provision which may limit certain of your legal rights if you have a dispute with us, including limitations relating to your right to file a lawsuit against us, to have your dispute heard by a jury, and a limitation on your right to participate in a class-action lawsuit against us. You may opt-out of this arbitration provision as described below in section 8.

As described in more detail below and subject to the terms and conditions of this Agreement, we may, at our sole discretion, agree to provide the Services to you, including by providing EWA (as such term is defined below) funds to you. If we do provide EWA funds to you, we will do so on a non-recourse basis. This means that you will not owe a debt to us in connection with any EWA funds that we provide to you, and that we will have no legal or contractual claim or remedy against you in connection with the EWA funds we provide to you. However, we will not provide any additional EWA funds to you if you do not first send us the entire amount of all of the EWA funds that we may have previously provided to you.

In addition to this Agreement, you must agree to each of the following to use the Services: our Online Account Terms and Conditions (the “Online Terms”), our Privacy Policy, and our Electronic Communications Policy (together, the “Additional Agreements”).

We may update or amend this Agreement or any of the Additional Agreements at any time and for any reason by posting updated versions of any of the Agreements on our website. Such amendments or updates will become effective immediately with respect to any new Services unless we expressly describe a later effective date in such updated agreement. By continuing to maintain your Account after the effective date of any such amendment or update, you expressly agree to be bound by the updated terms with respect to any new Services that you request or that we provide to you.

You acknowledge and agree that you have read, understood, and agree to be bound by this Agreement and each of the Additional Agreements. By using any of the Services, you acknowledge and agree to the terms and conditions of this Agreement and of each of the Additional Agreements. You acknowledge and agree that this Agreement will govern all matters relating to or arising out of any of the Services and any other services that we may provide to you in connection with this Agreement. Do not use the Services if you do not wish to be bound by this Agreement and the Additional Agreements.

1. Definitions

“Designated Account” means the bank account that you designate to us for the purpose of transmitting EWA funds to you.
“Earned Wage Advance” or “EWA” means each advance of funds that we provide to you as described in this Agreement. As described below, you will have no obligation to “repay” any EWA advance that we provide to you.
“Earnifi Online Account” means an account that you have opened through our mobile application or website in accordance with the Online Terms.
“Services” means (i) each EWA that we may provide to you; and (ii) Each of the Subscription Services that you purchase from us.
“Subscription Services” means each of the services that your purchase from us as described in this Agreement. Subscription Services also includes any additional services that we may choose to offer on a subscription basis in the future.

2. Earned Wage Advances

Terms.
1. Subject to the terms of this Agreement and each of the Additional Agreements, if you maintain an Earnifi Online Account in good standing, we may permit you to request an EWA from us. If we, at our sole discretion, agree to do so, we may provide an EWA to you.
2. All EWA funds that we agree to provide to you are on a non-recourse basis. This means that you will not incur a debt to us and we will not have any legal or contractual claims against you in connection with EWA funds that we provide to you under this Agreement. We will not engage in any debt collection activity in connection with any EWA we provide to you, refer or sell an EWA to any third-party for debt collection purposes, or furnish information about any EWA you obtain from us to any credit reporting agency.
Earned Wage Advance Funds. We will electronically transmit the EWA funds into your Designated Account. You must ensure that your Designated Account is in good-standing and otherwise able to receive EWA funds.
Our Rights: Although you are not required in any way to repay to us any amounts that we provide to you in connection with an EWA, note the following important information about our rights
1. You will not be eligible to receive an EWA if you have not, voluntarily, returned to us the full amount of all previous EWAs and any other amounts that we determine, at our sole discretion, that you must forward to us as a precondition for restoring your eligibility.
2. We reserve our right to recover amounts that you obtain from us through fraud, including, but not limited to, any EWA amounts that you fraudulently obtain from us. Please don’t commit fraud.
3. We reserve the right to deny, modify, or approve less than the requested amount of, any EWA request you submit to us, for any reason or for no reason, at our sole and absolute discretion.
4. We may limit the maximum amount of an EWA that you may request from us or that we may agree to provide to you. We may also limit the aggregate amount of all EWAs that you may request or receive from us in any given timeframe. We may impose and modify any such limits at any time and for any reason, at our sole discretion.
Information Sharing Requirements. We may require you to authorize one or more third parties to obtain information about you and to provide such information to us in connection with the Services. In addition to this Agreement and any other agreements you may have with us, any authorization that you provide to a third party will be subject to such third-party’s separate terms and conditions, which you will be required to accept before you can authorize such third-party to share your information with us.
Value-Added Services. We may offer various value-added services to you as part of the Services. If we agree to provide such value-added services to you, each such service may be subject to additional terms and conditions, and may require you to pay a fee to obtain such value-added service or to subscribe on an ongoing basis to such value-added service, in which case you may be required to pay periodic fees in connection with your subscription. Your use of any value-added services that we may offer is voluntary and you will have no obligation whatsoever to use such services. If you choose not to obtain a value-added service from us, we will not provide such service to you, but your decision will not otherwise limit or detract from your eligibility to obtain an EWA, the terms of any EWA that we may offer to you, or the availability of any other of our other Services. We may modify or discontinue some or all of the value-added services that we provide at any time and for any reason, with or without notice to you.Although you will have no obligation to return or repay any EWA, if you choose to purchase a value-added service from us, you will be legally responsible to pay any applicable fees in accordance with the applicable terms and conditions of the value-added service that you purchase, and we may collect all such amounts from you if you fail to pay for such value-added service, such as if a payment you make with respect to such value-added service fails or is reversed.
Remitting Payments to Us. At your sole discretion, you may voluntarily choose to remit payment(s) to us in connection with any EWA we provide to you. You can initiate payments to us via your Earnifi Online Account, and such payments may be subject to additional terms and conditions. It is your responsibility to ensure that you have sufficient funds available for each payment that you authorize, because your financial institution may charge you a fee for your payments to us that are returned as unpayable or due to insufficient funds. We accept no responsibility for any such fees you may incur, even if we knew or should have known that processing a payment in accordance with your payment authorization was likely to cause you to incur such fee. Payments that you make in connection with any value-added service that you purchase from us shall be made in accordance with the terms and conditions of such value-added service.
Your Representations and Warranties to Us. By opening and maintaining your Earnifi Online Account and each time you submit a request to us for an EWA, you represent and warrant to us that each of the following is true:
1. 1. That all of the information you provided to us, and that each of the representations and warranties that you made to us when you opened your Earnifi Online Account, were true and correct, and without any material omission;
  2. That you will not use the proceeds of an EWA for any illegal purpose or in a manner that violates any law, rule, or regulation, or any contractual or other legal obligations that you may have to any third-party;
  3. That you are a US citizen or a permanent resident of the United States and that you are a US resident; and
  4. That you are in compliance with each applicable Additional Agreement.

3. Subscription Services

General Subscription Services Terms. All Subscriptions are subject to the following additional terms and conditions.
1. Subscription Purchase Optional. Your purchase, if any, of a Subscription Service is entirely voluntary and your purchase or non-purchase of a Subscription Service will not affect the terms or benefits of any EWA or any other Service that you may receive from us. However, eligibility for certain Subscription Services may depend on your eligibility for or receipt of certain of our other Services.
2. Subscription Term. Subscription Services are purchased for automatically renewing one-year terms. Subscription Services terminate after the end of twelve complete monthly billing cycles. You may cancel Subscription Service(s) at any time as described below.
3. Subscription Term. Subscription Services are purchased for automatically renewing one-year terms. Subscription Services terminate after the end of twelve complete monthly billing cycles. You may cancel Subscription Service(s) at any time as described below.
4. Cancellation. You may cancel a subscription to a Subscription Service at any time by emailing us at support@earnifi.com or by clicking on the “Cancel” button in the subscription settings section of our mobile application. Cancellation of a Subscription Service will terminate the cancelled Subscription Service as of the next billing cycle. You will continue to receive the cancelled Subscription Service through the end of the billing cycle during which you cancelled the Subscription Service and you must continue to pay for the Subscription Service we provide to you through the end of the billing cycle. We may cancel any Subscription Service if you become ineligible for such Subscription Service after you purchase your subscription.
5. Billing Cycles. Subscription Services have a monthly billing cycle, beginning on the day the first subscription payment is received. We will provide you with monthly statements with information about each of the Subscription Services you received from us, their cost, and the amount of your payments during the billing cycle covered by each monthly statement.
6. Payments. Although your billing cycle is per-month, you must make payments for your Subscription Service(s) every two-weeks. We will assign the specific dates on which payments must be made for your Subscription Services at our sole discretion. However, you may request, and we, at our discretion may agree, to change the payment due dates for your convenience, such as if your employer changes your regular pay schedule.
7. Auto Renewal. Subscriptions will automatically renew upon the end of each subscription term unless you cancel your subscription before the end of the subscription term.
8. Change or Cancellation of Subscription Services. We reserve the right to modify or stop offering any Subscription Service at any time and for any reason. We will provide you with advance notice if we plan to stop offering a Subscription Service that you have subscribed to, and, if your payments exceed the amount that was due for the term of your subscription, we will refund the amount of any overpayment to you. We will provide you with advance notice if we plan to make any significant changes to a Subscription Service that you are subscribed to and we will provide you with the option to cancel your subscription or to continue subscribing to the Subscription Service as modified. Your failure to cancel a Subscription Service after we notify you of the significant change to such Subscription Service shall constitute your acceptance of the modified Subscription Service and any conforming amendment(s) to this Agreement that was described in our notification to you. For the avoidance of doubt, significant changes include, but are not limited to, any price increase but shall not include a price increase solely due to the increase of any applicable taxes.
9. New York Residents. Under New York’s Auto-Renewal law, New York consumers may cancel their subscription within at least 14 days after their first charge at a new, higher price, with a pro rata refund for any unused portion of the subscription.
  Expedited Funds Disbursement. One of the Subscription Services is our Expedited Funds Transfer service (an “Expedited Funds Subscription”), which is subject to the following terms and conditions:
1. The Expedited Funds Service. If you are a subscriber in good-standing to our Expedited Funds Subscription, EWA funds that we agree to provide to you will be transmitted to your Designated Account within approximately 30 minutes after we approve of an EWA request. The standard funds transfer timeframe for regular EWA funds disbursement is described in the EWA section of this Agreement.
2. Eligibility. To be eligible for our Expedited Funds Disbursement service, you must (1) be eligible to receive EWA funds from us; and (2) have an Earnifi Online Account; and (3) have a Designated Account in good standing into which we can transfer EWA funds.

4. Arbitration Agreement

Except as expressly provided in this Arbitration Agreement, you and we agree that any past, present, or future claim, dispute, or controversy, regardless of the legal theory on which it is based, arising out of, relating to, or in connection with this Agreement or any Services, or that arises from or is related to any relationship resulting from this Agreement or the Services (each, a “Claim”), may be submitted to and resolved on an individual basis by binding arbitration under the Federal Arbitration Act, 9 U.S.C. §§1 et seq. (the “FAA”), before the American Arbitration Association (the “AAA”) under its Consumer Arbitration Rules (the “AAA Rules”), in effect at the time the arbitration is brought, unless we and you agree in writing to arbitrate before a different party. If the AAA is unable to serve as administrator—and we and you cannot agree on a replacement—a court with jurisdiction will select the administrator or arbitrator. The AAA Rules are available online at http://www.adr.org or you can contact the AAA at 800-778-7879. If a Claim is arbitrated, it will be resolved by a neutral third-party arbitrator, and not by a judge or a jury, and you and we knowingly and voluntarily waive the right to a jury trial on such Claim.
The party bringing the Claim may elect arbitration of the Claim by initiating an arbitration in accordance with the AAA Rules. The other party may elect arbitration by giving written notice of an election to arbitrate. This notice may be given after a lawsuit has been filed and may be given in papers or motions in the lawsuit. If such a notice is given, the Claim shall be resolved by arbitration under this Arbitration Agreement and the AAA Rules then in effect. It will be up to the party bringing the Claim to commence the arbitration proceeding. Even if all parties have opted to litigate a Claim in court, we or you may elect arbitration with respect to any Claim made by a new party or any Claim later asserted by a party in that or any related or unrelated lawsuit (including a Claim initially asserted on an individual basis but modified to be asserted on a class, representative, or multi-party basis). Nothing in that litigation shall constitute a waiver of any rights under this Arbitration Agreement. The arbitrator will be selected under the AAA Rules.
Notice and Cure. Prior to initiating any lawsuit or arbitration against us or against any other person that relates to or arises from this Agreement, you must first provide to us written notice of your claim (a “Claim Notice”) and a reasonable opportunity, not less than 30 days, to resolve your claim. Prior to initiating any lawsuit or arbitration against you, we will provide you with a Claim Notice and a reasonable opportunity, not less than 30 days, to resolve our claim. If we are sending you a Claim Notice, we will send it to you at the most recent email and/or physical mail address appearing in our records or, if you are known to be represented by an attorney, to your attorney’s office address. Any Claim Notice must explain the nature of the Claim and the relief that is demanded. You and we agree to reasonably cooperate in providing to each other any information or documentation relevant to the allegations described in the Claim Notice and to act in good faith to resolve the allegations before filing any lawsuit or arbitration.
“Claim” has the broadest possible meaning and includes initial claims, counterclaims, cross-claims, and third-party claims. It includes disputes based upon contract, tort, consumer rights, fraud, and other intentional torts, constitution, statute, regulation, ordinance, common law, and equity (including any claim for injunctive or declaratory relief). For purposes of this Arbitration Agreement the term “we” or “us” includes (a) D5 Cash (d/b/a Earnifi); (b) any successor, successor-in-interest, transferee, assignee, affiliated fund, agent, designee, service provider, or any person or entity acting at our request or on our behalf in connection with this Agreement; (c) any affiliates, subsidiaries, and/or parent of the persons and entities referenced in (a) or (b); (d) the officers, directors, employees, stockholders, members, affiliates, subsidiaries, and parents of all of the foregoing in (a) through (c); and (e) any party named as a co-defendant with us in a Claim asserted by you.
Notwithstanding the above, if a Claim that you or we wish to assert against the other is cognizable in a small claims court (or your state’s equivalent court) having jurisdiction over the Claim and the parties, you or we may pursue such Claim in that small claims court; however, if the Claim is transferred, removed, or appealed to a different court, it may be resolved by arbitration as described herein. Nothing in that small claims court lawsuit shall constitute a waiver of any party’s rights under this Arbitration Agreement with respect to Claims asserted in any related or unrelated lawsuits.
Any dispute concerning the validity or enforceability of this Arbitration Agreement or any part thereof (including, without limitation, the class action waiver below) must be decided by a court; any dispute concerning the validity or enforceability of this Agreement as a whole is for the arbitrator. Any arbitration hearing that you attend will take place in a location that is reasonably convenient for you. If you cannot obtain a waiver of the AAA’s or arbitrator’s filing, administrative, hearing, and/or other fees, we will consider in good faith any request by you for us to bear such fees. Each party will bear the expense of its own attorneys, experts, and witnesses, regardless of which party prevails, unless applicable law or this Agreement gives a right to recover any of those fees from the other party. The arbitrator shall follow applicable substantive law to the extent consistent with the FAA, applicable statutes of limitation, and privilege rules that would apply in a court proceeding, and shall be authorized to award all remedies available in an individual lawsuit under applicable substantive law, including, without limitation, compensatory, statutory, and punitive damages (which shall be governed by the constitutional standards applicable in judicial proceedings), declaratory, injunctive, and other equitable relief, and attorneys’ fees and costs. Upon the timely request of either party, the arbitrator shall write a brief explanation of the basis of his or her award. The arbitrator’s award will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter judgment upon the arbitrator’s award. No arbitration award involving the parties will have any preclusive effect as to issues or claims in any dispute involving anyone who is not a party to the arbitration, nor will an arbitration award in prior disputes involving other parties have preclusive effect in an arbitration between the parties to this Arbitration Agreement.
This Arbitration Agreement shall survive the termination of this Agreement, your fulfillment or default of your obligations under this Agreement, and/or your or our bankruptcy or insolvency (to the extent permitted by applicable law). In the event of any conflict or inconsistency between this Arbitration Agreement, the AAA Rules, or any other provisions of any of the Additional Agreements, this Arbitration Agreement will govern.
Nothing in this Agreement precludes you from filing a complaint, or a charge with any governmental agency, or from participating in an administrative investigation of a charge before any appropriate government agency.
CLASS ACTION WAIVER: NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE ACTION IN COURT OR IN ARBITRATION, EITHER AS A CLASS REPRESENTATIVE OR CLASS MEMBER.
Further, unless both you and we agree otherwise in writing, the arbitrator may not join or consolidate Claims with claims of any other persons. The arbitrator shall have no authority to conduct any class, private attorney general, or other representative proceeding, and shall award declaratory or injunctive relief only in favor of the party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. The arbitrator shall have no authority to issue any relief that applies to any person or entity except you or us individually. If any portion of this Arbitration Agreement cannot be enforced, the rest of the Arbitration Agreement will continue to apply, except that (a) if a determination is made in a proceeding involving us and you that the class action waiver is invalid or unenforceable with respect to a claim that does not seek public injunctive relief, only this sentence of this Arbitration Agreement will remain in force and the remainder of this Arbitration Agreement shall be null and void, provided that the determination concerning the class action waiver shall be subject to appeal, and (b) if a Claim is brought seeking public injunctive relief and a court determines that the restrictions in the class action waiver prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such Claim (and that determination becomes final after all appeals have been exhausted), the Claim for public injunctive relief will be determined in court and any individual Claims seeking monetary relief will be arbitrated. In such a case, the parties will request that the court stay the Claim for public injunctive relief until the arbitration award pertaining to individual relief has been entered in court. In no event will a Claim for public injunctive relief be arbitrated.
This Arbitration Agreement does not apply if you are a member of the Armed Forces or a dependent of a member covered by the federal Military Lending Act. If you would like more information about whether you are covered by the Military Lending Act please contact us at +1-877-327-6434.
Right To Opt-Out of Arbitration. You may opt-out of this Arbitration Agreement by emailing us at support@earnifi.com within 30 calendar days after the date of this Agreement. Any rejection notice must include your name, address, email address, telephone number, and account or contract number. If you reject this Arbitration Agreement, no other provision of this Agreement will be affected.
Waiver of Jury Trial. YOU ACKNOWLEDGE AND AGREE THAT, INASMUCH AS THE PURPOSE OF THIS ARBITRATION AGREEMENT IS TO REQUIRE THAT ALL CLAIMS MAY BE RESOLVED BY BINDING ARBITRATION, EXCEPT TO THE EXTENT THAT THIS WAIVER IS PROHIBITED BY ANY APPLICABLE LAW, NO PARTY TO THIS RETAIL INSTALLMENT CONTRACT SHALL BE ENTITLED TO A TRIAL BY JURY IF SUCH ARBITRATION AGREEMENT IS IN EFFECT. MOREOVER, TO THE EXTENT YOU TIMELY AND ADEQUATELY REJECT THIS ARBITRATION AGREEMENT, OR IF FOR ANY OTHER REASON A CLAIM IS NOT ARBITRATED, WE AND YOU KNOWINGLY AND VOLUNTARILY WAIVE ANY RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY CLAIM, EXCEPT TO THE EXTENT THAT THIS WAIVER IS PROHIBITED BY APPLICABLE LAW.

5. Miscellaneous

Conflicts. In the event of any conflict between this Agreement and any of the Additional Agreements or any other agreement between you and us, the terms of this Agreement shall be controlling.
Automated Communications. You authorize us to communicate with you using automated telephone dialing, text messaging systems, and electronic mail, and to provide messages to you about the Services and any other service we may provide to you under this Agreement, the Additional Agreements, or any other agreement between you and us. You authorize us to play automated telephone messages when your telephone is answered, whether answered by you or someone else. You authorize us to cause messages to be recorded directly in your voicemail without causing your telephone to ring or otherwise notifying or alerting you of an incoming telephone call. You give us your permission to call or send text messages to any telephone number you provide to us, now or in the future, and to play pre-recorded messages or send text messages over the phone. You also give us permission to communicate such information to you via electronic mail. You understand that, when you receive such calls or electronic communications, you may incur a charge from the company that provides you with telecommunications, wireless, and/or internet services. You agree that we have no liability for such charges. You agree that this authorization constitutes a bargained-for exchange.
Telephone and Screen Recording. You understand and agree that we may monitor and/or record any of your phone conversations with us. You understand and agree that we may monitor and/or record your interactions with our website or any mobile application that we provide
Governing Law. Unless prohibited by any applicable law, the validity, interpretation, construction, and performance of this Agreement, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto and thereto shall be governed, construed, and interpreted in accordance with the laws of the State of New York, without giving effect to principles of conflicts of law. Notwithstanding the foregoing, federal law shall govern the Arbitration Agreement portions of this Agreement.
Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and supersedes all prior or contemporaneous discussions, understandings, and agreements, whether oral or written, between you and us relating to the subject matter hereof.
Successors And Assigns. Except as otherwise provided in this Agreement or any of the Additional Agreements, the rights and obligations of the parties hereunder, will be binding upon and inure to the benefit of their respective permitted successors, assigns, heirs, executors, administrators, and legal representatives. We may sell, assign, or otherwise transfer any of our rights, economic benefits, or obligations under this Agreement. You may not assign, whether voluntarily or by operation of law, any of your rights, economic benefits, or obligations under this Agreement, except with our prior written consent.
Notices. Any notice, demand, or request required or permitted to be given under this Agreement shall be in writing and, except as otherwise provided, shall be deemed sufficient when sent by email or 2 Business Days after being deposited in the U.S. mail as certified or registered mail with postage prepaid. Notices to us shall be sent to us at email at support@earnifi.com or posted at 210 W 29th Street, 9th Floor, New York, NY, 10001, or in accordance with such other notification requirements that we may provide to you in writing. Notices to you will be sent to the email and/or physical mail addresses you provided in your application for an Earnifi Online Account or for an EWA, or to any other email and/or physical address that you provide to us, unless you have subsequently informed us that such email or physical address is invalid and have provided us with an updated email and/or physical address.
Severability. Except as set forth in the Arbitration Agreement, if one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision(s) in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision(s), then (i) such provision(s) shall be excluded from this Agreement, (ii) the remaining portions of the Agreement shall be interpreted as if such provision(s) were so excluded, and (iii) the remaining portions of the Agreement shall be enforceable in accordance with their terms.
Execution; Electronic Transactions. This Agreement may be executed electronically or manually. Execution may be completed in counterparts (including both counterparts that are executed on paper and counterparts that are electronic records and executed electronically), which together constitute a single agreement. Any copy of this Agreement (including a copy printed from an image of this Agreement that has been stored electronically) shall have the same legal effect as an original.
Independent Decision to Enter into This Agreement. You agree that this Agreement is an arm’s-length transaction. You agree that we are not an agent or fiduciary or advisor in connection with the execution of this Agreement. You agree that we have not provided any legal, accounting, investment, regulatory, or tax advice with respect to this Agreement.