Please read this Dave Goals Account Agreement and Disclosures (the “Agreement”) carefully and retain it for your future reference. This Agreement contains the general terms, conditions, and disclosures related to the interest-bearing demand deposit account (“Goals Account”) made available to eligible consumers by Evolve Bank & Trust (“Evolve” or “Bank”), member of the Federal Deposit Insurance Corporation (“FDIC”), and serviced by Dave Operating LLC, a service provider to Evolve (“Dave”). When you see the words “we,” “us,” or “our” in this Agreement, it refers to Evolve, as well as any of its affiliates, successors, assignees, agents or service providers. When you see the words “you” or “your,” it refers to you, the owner of Goals Account, and your personal representatives, executors, administrators, and successors.

If there is a conflict between this Agreement and any other document or statement made to you concerning the Goals Account, this Agreement will govern. If there is a conflict between this Agreement and any other document or statement made to you concerning any services or products other than Goals Account, the separate terms and conditions applicable to that service or product will govern. Section headings that appear in this Agreement are for convenience purposes only and are intended to help you find information. They should not be construed as affecting the meaning of the Agreement.

By opening or continuing to hold a Goals Account with us, you agree to be bound by this Agreement, as well as any other agreement or document we may provide to you from time to time in connection with the Goals Account.

Separate terms and conditions apply to the services provided by Dave other than as Evolve’s service provider. Please refer to the Terms of Use available at https://dave.com/terms and the Privacy Policy https://dave.com/privacy.  Such services are not provided or controlled by Evolve or this Agreement, and you agree not to hold Evolve liable for issues that may arise from your use of such services.

IMPORTANT NOTE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION AND YOUR RIGHT TO A JURY. THE TERMS OF ARBITRATION AND THE WAIVER APPEAR IN SECTION V(M) OF THIS AGREEMENT.

I. Dave Goals Account Disclosures. 

Minimum Balance to Obtain Annual Percentage Yield (APY) - There is no minimum balance required to obtain the disclosed APY.

Rate Information - The interest rates and annual percentage yields are variable and may change at any time at our discretion. Members who accessed this account through the Dave Mobile App with a subscription fee (as shown on the Membership settings in the App) have an interest rate of 3.9223%, with an APY of 4.00%. Members who accessed this account through the Dave Mobile app without a subscription fee (as shown on the Member settings in the App) have an interest rate of 0.01% with an APY of 0.01%.

Compounding and Crediting - Interest on your account will be compounded and credited monthly and posted to your account on the 1st of each month.

Effect of Closing an Account – If your account is closed before interest is credited, you will not receive accrued interest. If the same account is reactivated later in the next month or the same month, the daily interest accrual starts afresh for that account and they never receive the forfeited interest amount.

Balance Computation Method - We use the daily balance method to calculate the interest on your account. This method applies a daily periodic rate to the principal in the account each day. We use an interest accrual basis of 365 for each day in the year.

Accrual of Interest on Deposits - For all types of non-cash deposits, interest will begin to accrue no later than the next business day following the banking day on which the funds were deposited. (Here's an example - if you make a non-cash deposit on a Sunday, we will process it on Monday, and interest will begin to accrue no later than Tuesday.)

Transaction Limitations - Automated Clearing House (ACH) External Transfer transactions are subject to limits on the dollar amount of electronic transfers between your account and external accounts at other financial institutions. These limits are designed to be flexible in order to protect the security and integrity of the service and accounts, as well as you and all other users of the service. Based on confidential fraud and essential risk criteria, they may be modified at our discretion without advance notice.

Transfers from your Goals Account are limited to six per calendar month. We reserve the right to require not less than 7 days’ notice in writing before each withdrawal from an interest-bearing account other than a time deposit or demand deposit, or from any other savings account as defined by Regulation D. The law requires us to reserve this right, but it is not our general policy to use it.

We may limit, refuse or return all or any part of a deposit without prior notice to you.

Please see the section titled Electronic Fund Transfers for additional information on certain transaction limits. 

Account Limits - We reserve the right to limit the number of accounts you may open at our discretion and without advanced notice.

II. Dave Goals Account Basics

The Dave Goals Account is an interest-bearing demand deposit account used to hold your deposits and make transfers between accounts you may have with Dave, or at other banks and to third parties online, through Dave’s mobile application (the “Mobile App”). Each account allows you to create up to three separate subaccounts or goals that allow you to earmark your funds. 

A. Dave Goals Eligibility

Goals Account is available to United States citizens or lawful permanent residents of the fifty (50) United States (“U.S.”), the District of Columbia, American Samoa, Guam, Marshall Islands, Northern Mariana Islands, Palau, and US Virgin Islands who are at least 18 years of age, have a U.S. physical address or with military addresses (APO or FPO), and have a valid Social Security Number or Tax Identification Number. Goals Account is only available to individuals for personal, family or household purposes and may not be opened by a business in any form or used for business purposes.

You must also agree to go paperless. This means that you must (1) provide us with a valid email address and (2) agree to accept electronic account disclosures. Please refer to the Electronic Signatures in Global and National Commerce Act (ESign) Policy https://www.dave.com/electronic-communications-consent for additional details.

We may decline to open a Goals Account for you for any reason, or for no reason; this includes if you have had or currently have any other relationships or accounts with either us or Dave that you did not maintain in a satisfactory manner. We are not liable for any damages or liabilities resulting from the refusal of the Goals Account relationship.

B. Titling and Ownership

Goals Account may only be owned in the name of one person who may make deposits and transfer or withdraw funds. Goals Account cannot be owned or titled as a joint account, trust account, a Uniform Transfers to Minors (UTMA) account or a Payable On Death (POD) account.

C. How To Open a Goals Account

You may apply for Goals Account by submitting a request through the Mobile App and providing all requested information.

Important information about procedures for opening a new Goals Account: To help the government fight the funding of terrorism and money laundering activities, federal law requires all financial institutions to obtain, verify and record information identifying each person who opens a Goals Account. This means that when you open a Goals Account, we will ask for your name, street address, Social Security Number or Tax Identification Number, date of birth, and other information that will allow us to identify you. We may also ask to see identifying documents, such as a driver’s license.

D. No Minimum Deposit Balance

There is no minimum deposit required to open a Goals Account and no minimum balance you need to maintain in your Goals Account.

E. Death or Incapacitation

You agree that your representative must notify us promptly if you die or become legally incapacitated. If we receive notification or if we have reason to believe that you have died or become incapacitated, we may place a hold on your Goals Account and refuse all transactions until we know and have verified the identity of your successor. Until we receive notice and any required proof of death or incapacitation, we may continue to accept deposits and process transactions to your Goals Account. In the event we receive written notice from a personal representative, executor, administrator, conservator, or guardian purporting to represent you or your estate, we shall be entitled to rely on all information supplied and representations made in such written notice to the full extent permitted by applicable law. If certain payments originating from government entities are deposited into your Goals Account after your death, we may be required to return those payments to the originator. Your estate will be responsible for repaying us for any tax liability resulting from the payment of your account balance to your estate. You agree to hold us harmless for any actions we take based on our belief that you have died or become incapacitated, or any notices of death or incapacitation that we receive. If you owe us a debt at the time of your death, we are authorized to exercise our right of setoff or security interest rights against the funds credited to your Goals Account after your death.

F. Our Relationship With You

By opening a Goals Account, we are establishing a Goals Account relationship with you and committing to act in good faith and to the exercise of ordinary care in our dealings with you as defined by the Uniform Commercial Code as adopted by the State of Tennessee. This Agreement and the Goals Account relationship do not create a fiduciary relationship or any other special relationship between you and us.

G. Our Business Days 

Our business days are Monday through Friday, excluding federal holidays and any days we are not open. 

H. How To Contact Us

You may contact Dave with any questions or concerns regarding your Goals Account. The best way to contact Dave is through the Mobile App’s chat feature. Dave customer service representatives are available by chat Monday - Saturday from 6:00 AM to 4:00 PM Pacific Time. You may also call us at 1-844-857-3283; live agent support is available Monday – Friday 5 AM – 9 PM Pacific Standard Time and Saturday – Sunday 5 AM – 5 PM Pacific Standard Time. You can also contact Dave by email at support@dave.com.

In addition to the chat feature in the Mobile App and email, you may also call us at 1-844-857-3283 to (1) report unauthorized activity on your Goals Account or (2) notify us of an error involving a transaction on your Goals Account.

III. Your Dave Goals Responsibilities

We strive to keep your Goals Account secure and provide you with tools and services to help you manage your Goals Account. However, there are certain things you should do to protect your Goals Account and your funds

A. Notify Us If Your Information Changes

You must notify us immediately if there is a change to your name, telephone number, mailing address, email address or any other information you have provided us so that we can continue to provide you with statements and important notices concerning your Goals Account.

B. Keep Track of Your Transactions and Available Balance

It is very important that you keep track of your transactions and the funds in your Goals Account that are available for you to use (“Available Balance”) by reviewing your transaction history through the Mobile App. Your Available Balance is viewable at any time through the Mobile App, but it is important to understand that it may not reflect transactions you have authorized that have not yet been completed. You are also responsible for reviewing your Goals Account statements as they are made available to you for errors or unauthorized activity. If you identify an error or unauthorized activity, you must notify us promptly to avoid losing your money. Please refer to Section VI for information concerning errors and unauthorized activity.

C. Prohibited Use

In addition to prohibited uses outlined in this Agreement, you agree that you are prohibited from engaging in conduct that reflects behavior that we deem, in our sole discretion, to be foul language, abuse of power or in support of hate, violence, harassment, bullying, discrimination, terrorism, or intolerance of any kind relating to race, ethnicity, national origin, religious affiliation, sexual orientation, sex, gender, gender identity, gender expression, serious disabilities or diseases. This is not an exhaustive list and we reserve the right to close your account if we, in our sole discretion, determine you violated any term or spirit of the Agreement.

You must not use your Goals Account for any illegal purposes or, regardless of whether it is legal or illegal, for internet gambling. We reserve the right to deny any transaction or refuse to accept any deposit that we believe, in our sole discretion, is related to illegal activity, online gambling, violates Terms of Service or the Goals Agreement, or for any other reason at our discretion. Violations may result in permanent account closure.

IV. General Rules Governing Your Dave Goals Account

You understand that any payment instruction or activity performed using the Mobile App shall be deemed authorized and valid and we are under no obligation to investigate the instruction or activity.

Transactions are subject to limits on the amount and frequency of transfers to and from your account. These limits are designed to be flexible in order to protect the security and integrity of the service and accounts, including protecting you and all other users of the service. These limitations may be based on confidential fraud and risk criteria that are essential to our management of risk and the protection of you and the integrity of the service and may be modified at our sole discretion without advance notice.

A. Making Deposits Into Goals Account

You may make deposits into your Goals Account using any of the methods described below. Special limitations may apply to Goals Account open less than thirty (30) calendar days.

Dave will notify you about your upcoming recurring transfer 3 days prior to the scheduled transfer date.

* You may transfer funds between your Goals Account and Dave Checking Account (which you may see referred to as your “Dave Spending Account”), or another bank account. The linked bank account must be located in the United States.

** If your recurring transfer fails, it will be automatically cancelled for all future transfers, and you will need to set up a new recurring transfer.

We do not accept deposits by wire transfer, mail, or cash, paper check or foreign currency deposits: We are not liable for wire transfers that you may attempt into your Goals Account or deposits of any kind that you mail to us, including if it is lost in transit, lost in the mail, or otherwise not received by us.

• Wire Transfers: We do not accept wire transfers. If you attempt a wire transfer, the transaction will be rejected.
• Cash: We do not accept deposits made in cash into your Goals Account. 
• Paper Checks: If you mail a paper check to us, including personal checks, money orders or cashier’s checks, we may apply the check to any negative balance you may have on your Goals Account or send the check back to you.
• Foreign Currency: We do not accept any deposits in foreign currency. Any deposits received in foreign currency, whether in the form of cash or check, will be sent back to you.

We will send all items back to the address we have for you on file and we are not liable if you do not receive the items.

You may only deposit with us funds that are immediately available, which under applicable law are irreversible and are not subject to any lien, claim or encumbrance. For more information about deposits and when funds from a deposit will be made available to you, please refer to Section IV(D).

B. Our Funds Availability Policy – Your Ability to Use Your Funds

Deposits may only be made by Electronic Fund Transfer, Automated Clearing House (“ACH”) transfers from a linked bank account, Google Pay or Apple Pay transfers, or debit card transfers. It is our policy to make deposits made by Electronic Fund Transfer available to you on the business day we receive the deposit. Keep in mind that it may take several days for us to receive ACH transfers from a linked bank account.

Deposits received by us on a business day before 3:00 PM Pacific Time will be considered received that day. Deposits received on a business day after 3:00 PM Pacific Time, or at any time on a non-business day, will be considered received the following business day.

C. Problems that Could Occur With Deposits

If a deposit or transfer to your Goals Account is returned or rejected by the paying financial institution for any reason, or if there is an error or mistake involving a deposit or transfer, we may deduct the amount of the deposit, transfer or error without prior notice to you. If there are insufficient funds in your Goals Account at the time, your Goals Account may become overdrawn.

D. Withdrawals From Your Goals Account

You may withdraw funds up to the amount of your Available Balance in your Goals Account By Electronic Fund Transfer using any of the following methods.

*See New Account Limitations in the Dave Checking Deposit Agreement and Disclosures

Before permitting a withdrawal or other transaction, we may request that you provide us with additional information or documentation that we deem necessary to confirm your identity or to prevent illegal activity. We may refuse the transaction if you do not comply with our request.

E. Transfers To or From Linked Bank Accounts

You may link another bank account you have to your Goals Account in order to transfer funds between the linked bank account and your Goals Account using the Mobile App. You represent and warrant: (1) that you have the right to authorize any and all charges and debits to the linked account; (2) the linked account is held at a depository institution located in the U.S.; and (3) you are individually or jointly the owner of the linked account. By linking a bank account, you agree to indemnify and hold us harmless from any claims by any person related to the linked bank account, including any other owner of the linked bank account. You may only link a bank account that is a deposit account, such as a checking, savings or money market account. You are not permitted to link your Goals Account with a credit or gift card.

F. How We Post Transactions To Your Goals Accountant Determine Your Available Balance

To understand how we post transactions to your Goals Account, it is important to first understand the difference between your Available Balance and your ledger balance. Your Available Balance is the amount of money you have in your Goals Account at any given time that is available for you to use, pending any holds. Your ledger balance is the balance in your Goals Account. We use your Available Balance to authorize your transactions throughout the day and determine whether you have sufficient funds to pay your transactions. Here are some additional terms that are helpful to understand:

• Credit and debit – A credit increases your balance and a debit decreases your balance.
• Post or posted – Transactions that are paid from or deposited to your Goals Account. Posted transactions will either increase or decrease both your Available Balance and your ledger balance.
• Pending – Transactions that we receive notice of and are scheduled to post to your Goas Account. Pending transactions affect your Available Balance, but not your ledger balance.
  1. Posting Order We receive transactions throughout the day and post them to your Goals Account in real time. First, we start with your ledger balance, subtract any holds from your balance and make any adjustments from prior transactions. Next, we add available deposits and credits to your balance. Fees are posted in real time. 
  2. Determining Your Available Balance To determine your Available Balance, we start with your ledger balance at the beginning of the business day, add any pending credits or deposits that we make available to you, and subtract any card authorizations and pending debits. All transactions are debited or credited in the order received. You may check your Available Balance at any time through the Mobile App. Keep in mind that your Available Balance may not reflect every transaction you have initiated or previously authorized. For example, your Available Balance may not include transactions you have authorized that we have not received.

G. Statements

You will receive a statement monthly as long as you have transactions on your Goals Account during the statement period. If there were no transactions on your Goals Account, we will provide you statements at least quarterly. You will not receive paper statements.

H. Overdrafts and Negative Balances

We do not permit you to overdraw your Goals Account and we do not charge you insufficient funds fees or overdraft fees. If the Available Balance in your Goal Account is not sufficient to cover any transaction you have authorized, we can refuse to process the transaction. However, there may be instances where your Goals Account can still become overdrawn if a deposit is returned.

I. Closing Your Goals Account and Account Suspensions

You can close your Goals Account at any time and for any reason by submitting a request through the Mobile App or by contacting Dave by email at support@dave.com. We reserve the right to refuse your request if you have a negative balance in your Goals Account.

We may also suspend or close your Goals Account at our discretion for any reason or no reason at all with or without notice. This includes if we believe you are using your Goals Account for fraudulent or illegal purposes or in violation of law or regulation, this Agreement, any other agreement you may have with us or Dave, or if you otherwise present an undue risk to us. We are not responsible to you for any damages you may suffer as a result of the closure or suspension of your Goals Account. Subject to federal law, if your Goals Account is closed, we will return your funds to you by ACH transfer to a linked bank account or by paper check. We reserve the right not to return funds to you if your account balance is one dollar ($1) or less. The closure of your Goals Account or termination of this Agreement does not impact any right or obligation that arose prior to closure or termination, or any right or obligation that, by its nature, should survive termination (including, but not limited to, any indemnification obligation by you, our limitations of liability, and any terms governing arbitration).

J. Dormancy, Inactivity and Unclaimed Property

State and federal law and our policy govern when your Goals Account is considered dormant. Your Goals Account is usually considered dormant if you have not accessed your Goals Account, communicated to us about your Goals Account or otherwise shown an interest in your Goals Account within the period of time specified under applicable law. Each state has varying laws as to when an account is subject to escheatment and we may be required to send the balance in your Goals Account to the state of your last known address. We will make all reasonable efforts to contact you if required by applicable law before transferring the remaining balance of your Goals Account to the applicable state. After we surrender the funds to the state, we have no further liability to you for those funds and you must apply to the appropriate state agency to reclaim your funds. You can avoid the surrender of your funds to the state by simply using the Mobile App to view your Goals Account, conducting transactions, contacting us about your Goals Account or replying to any abandoned property notices we may provide to you.

We may also place your Goals Account in inactive status if you have not had any transactions for at least four (4) months. If your Goals Account becomes inactive, you may not receive statements or be able to conduct certain transactions. The inactive Goals Account must be reactivated. Contact Dave by email at support@dave.com to reactivate your Goals Account.

K. Fees and Fee Schedule

You agree to pay all fees and charges applicable to your Goals Account. All fee amounts will be withdrawn from your Goals Account and will be assessed as long as there is a remaining balance in your Goals Account, except where prohibited by law. Any time your remaining balance is less than the fee amount being assessed, the balance on your Goals Account. Fees are subject to change at any time. We will provide you advance notice of any changes where required by law.

IV. Electronic Fund Transfers

Your Goals Account allows you to withdraw funds up to the Available Balance or make deposits through Electronic Fund Transfers (“EFTs”). EFTs are transactions that are processed by electronic means and include, among others, ACH transfers, debit card transactions. This Section provides you with information and important disclosures and terms about the EFTs that are permitted on your Goals Account. You may also receive additional services from Dave through the Mobile App, that allow you to initiate EFTs to and from your Goals Account that are not described in this Agreement. You will be provided separate agreements and disclosures applicable to those services from Dave.

A. Types of EFTs Supported by Your Goals Account

Your Goals Account allows the following types of EFTs:

• Transfers to or from your Goals Account to a linked bank account through the Mobile App
• Transfers to or from your Goals Account to or from your Dave Checking Account

B. Limitations on EFTs

There are limitations on the frequency and amount of transactions you can make to or from your Goals Account. These limits are different for each type of transaction. For limits that apply to transactions that credit or deposit funds into your Goals Account, please refer to Section III(A) concerning deposits. For limits that apply to transactions that debit or withdraw from your Goals Account, please refer to Section III(D) concerning withdrawals.

For security reasons, your Goals Account may be subject to security-related limits on the number and amount of transfers you can make from a linked bank account to your Goals Account in addition to those described in Sections III(A) and III(D). These security-related limits may change from time to time. Dave will provide notice to you of such changes when required by applicable law.

C. Your Right to Receive Information and Documentation of Your Transactions

We will provide you information about each transaction that debits or credits your Goals Account on your statements. You may also view your transaction history at any time through the Mobile App.

D. Liability for a Failure To Complete A Transaction

If we do not complete a transfer to or from your Goal Account on time or in the correct amount according to our agreement with you, we will be liable for your losses or damages. However, there are some exceptions. We will not be liable, for instance:

• If the Available Balance in your Goals Account is not sufficient to complete the transaction through no fault of ours.
• If the failure is due to an equipment or system breakdown that you knew about before you began a transaction.
• If a third party’s mobile application or other system, such as Apple Pay or Google Pay, breaks down or does not work properly.
• The failure was caused by an Act of God, fire or other catastrophe, or any other cause beyond our control despite reasonable precautions we have taken.
• If your funds are not available due to a hold or if your funds are subject to legal process.
• If we do not complete a transaction because we or Dave has reason to believe the transaction is unauthorized or illegal.
• Your Goals Account is closed or inactive.

There may be additional exceptions stated in our agreements with you or permitted by law.

E. Your Liability for Unauthorized EFTs

Contact us immediately if you believe that an unauthorized EFT has occurred or may occur concerning your Goals Account. Calling us at 1-844-857-3283 is the best way of keeping your losses to a minimum. You could lose all the money in your Goals Account (and any bank accounts you have linked through the Mobile App) if you take no action to notify us of the unauthorized EFT or your Mobile App login credentials.

(Tell us AT ONCE if you believe your Mobile App credentials or mobile phone has been lost or stolen, or if you believe that an electronic fund transfer has been made without your permission using information from your check. Telephoning us at 1-844-857-3283  is the best way of keeping your possible losses down. You could lose all the money in your account (plus your maximum overdraft line of credit). If you tell us within 2 business days after you learn of the loss or theft of your [Mobile App credentials or mobile phone, you can lose no more than $50 if someone used your Mobile App credentials or mobile phone without your permission.)

If you do NOT tell us within 2 business days after you learn of the loss or theft of your Mobile App credentials or mobile phone, and we can prove we could have stopped someone from using your Mobile App credentials or mobile phone without your permission if you had told us, you could lose as much as $500.

Also, if your statement shows transfers that you did not make, including those made by card, code or other means, tell us at once. If you do not tell us within 60 days after the statement was mailed to you, you may not get back any money you lost after the 60 days if we can prove that we could have stopped someone from taking the money if you had told us in time. If a good reason (such as a long trip or a hospital stay) kept you from telling us, we will extend the time periods.

F. In Case of Errors or Questions About Your EFTs

Contact us at 1-844-857-3283 or email at research@galileoprocessing.com as soon as you can if you think your statement is wrong or if you need more information about a transfer listed on a statement. We must hear from you no later than sixty (60) days after we sent the FIRST statement on which the problem or error appeared. You must provide us with the following information:

• Your name.
• Describe the error or the EFT you are unsure about and explain as clearly as you can why you believe it is an error or why you need more information.
• Tell us the dollar amount of the suspected error.

If you tell us orally, we may require that you send us your complaint or question in writing by email within ten (10) business days. 

We will determine whether an error occurred within 10 business days after we hear from you and will correct any error promptly. If we need more time, however, we may take up to 45 days to investigate your complaint or question. If we decide to do this, we will credit your account within 10 business days for the amount you think is in error, so that you will have the use of the money during the time it takes us to complete our investigation. If we ask you to put your complaint or question in writing and we do not receive it within 10 business days, we may not credit your account.

For errors involving new accounts, point-of-sale, or foreign-initiated transactions, we may take up to 90 days to investigate your complaint or question. For new accounts, we may take up to 20 business days to credit your account for the amount you think is in error.

We will tell you the results within three business days after completing our investigation. If we decide that there was no error, we will send you a written explanation.

You may ask for copies of the documents that we used in our investigation.

If you need more information about our error resolution procedures, call us at [telephone number][the telephone number shown above].

V. Other Legal Terms and Conditions

A. No Assignments Goals Account

Your obligations under this Agreement are not transferable and not assignable as collateral for a loan or for any other purpose. We or Dave may transfer our rights under this Agreement.

B. Sub-Deposit Accounts / Bank Deposit Custodial Program

• Introduction. By accepting the terms of this Agreement or opening the Goals Account with us, you agree to participate in the Bank deposit custodial program, as further described in this Section V(B) (the “Program”) and agree to be bound by the following terms and conditions set forth herein.  The Program is offered by us in connection with your Goals Account.  If you have any questions about any provisions of this provision, please contact us Support@dave.com.

Pursuant to the terms of this Agreement, you agree to appoint Bank, as agent for you and as custodian, to open and maintain with one or more insured depository institutions (each, a “Program Bank” and collectively, “Program Banks”) an omnibus deposit account, transaction account, money market account, or omnibus custody account (individually and collectively, “Sub-Deposit Account”) in the name of Bank (for your benefit), and to deposit your funds into Sub-Deposit Accounts at one or more Program Banks as set forth on a list provided to you (“Bank List”).  You agree to open a custodial account at Bank (“Custodial Account”), which may be used to facilitate deposits to and withdrawals from the Sub-Deposit Account.

When you deposit funds with Bank under this Agreement, your funds will be deposited into your Goals Account and may be deposited by Bank, as your agent and custodian, into Sub-Deposit Accounts at one or more Program Banks via your Goals Account or Custodial Account. As your custodian, Bank will maintain records of your Sub-Deposit Accounts at each Program Bank. 

Your funds at Bank and at each Program Bank identified as a “Priority Bank” on the Bank List are eligible for FDIC insurance coverage up to $250,000 for each insurable capacity in which your Sub-Deposit Account is held (e.g., individual account, joint account, etc.) (the “Deposit Limit”). 

Funds in your Goals Account or Sub-Deposit Account may exceed the Deposit Limit in any Priority Bank. Amounts in excess of the Deposit Limit but not greater than the Program Insurance Eligibility Limit (as defined herein) will be deposited at one or more Priority Banks. Any amount in excess of the Program Insurance Eligibility Limit may not be covered by FDIC insurance; such amount may be deposited at a Priority Bank acting as an “Excess Bank” (as set forth on the Bank List) for such amount without limit and without regard to the maximum FDIC insurance coverage available.

Any deposits (including certificates of deposit) that you maintain in the same insurable capacity directly with Bank, a Program Bank or through an intermediary (such as a broker), regardless of the number of accounts, will be aggregated with funds in your Goals Account, Sub-Deposit Account, Custodial Account or a Program Bank for purposes of the Deposit Limit. You are responsible for monitoring the total amount of deposits that you have with Bank and each Program Bank in order to determine the extent of FDIC insurance coverage available to you. 

The Sub-Deposit Accounts are solely the obligations of the Program Banks, and neither directly nor indirectly obligations of Bank nor Dave. Bank is agent and custodian for you with respect to Sub-Deposit Accounts and ownership will be evidenced by a book entry in records maintained by Bank. You will not have a direct relationship with the Program Banks. No evidence of ownership related to the Sub-Deposit Account will be issued to you, and you will not receive any written confirmation of the establishment of the Sub-Deposit Account or transfer of funds to or from the Sub-Deposit Account. All deposits and withdrawals will be made by Bank on your behalf, and all deposits to your Sub-Deposit Account and withdrawals from the Sub-Deposit Account necessary to satisfy any debits to or withdrawals from your Goals Account will be made by Bank, as your agent. Information about your Sub-Deposit Accounts may be obtained from Bank or Dave, not the Program Banks. 

All communications regarding the Program, including periodic statements and notices regarding changes to the Program, are the responsibility of Dave and Bank, not the Program Banks. If you have any questions regarding your Goals Account or Sub-Deposit Accounts, please contact Bank at Support@dave.com

The terms and conditions of the Program, and any feature of the Program, may be varied at Bank’s sole discretion. Bank, in its sole discretion, may make exceptions to the terms and conditions of the Program. 

For purpose of this Agreement, the term “Goals Account” may also collectively include Sub-Deposit Accounts corresponding to such Goals Account.

ii. Appointment of Bank as Your Agent and Custodian. You appoint Bank, and Bank agrees to be appointed, as your agent and custodian to hold in safekeeping all Sub-Deposit Accounts at Program Banks. You authorize Bank to execute and deliver or file on your behalf all appropriate receipts, agreements, releases and other instruments, including whatever agreements may be required to establish and maintain the Sub-Deposit Accounts or to establish your ownership interest in the Sub-Deposit Account. You appoint Bank to act as your agent with respect to establishing, maintaining and administering the Sub-Deposit Account, and you authorize us to take any action necessary to establish, maintain and administer the Sub-Deposit Account and to initiate transfers to and from your Sub-Deposit Account, Custodial Account and Goals Account as we may determine in Bank’s sole discretion.

You agree that Bank, as your agent, may place any or all of your funds on deposit with Bank at one or more Program Banks in an amount determined in Bank’s sole discretion based on available capacity at the Program Bank or other criteria, including rates or fees paid on deposits by the Program Bank to Bank. Bank may place your funds without regard to whether such funds may exceed the Deposit Limit at one or more Program Banks, even if your funds could be placed in one or more Program Banks in an amount less than the Deposit Limit. 

Bank may financially benefit if it places your funds into a Program Bank in excess of the Deposit Limit when that Program Bank pays a greater amount of fees to Bank than other Program Banks that could accept your deposits in amounts under the FDIC insurance limit. Please carefully read the section entitled “Waiver of Conflicts” below.

You authorize Bank to collect and retain all payments of income pertaining to the Sub-Deposit Accounts (if any) and to deliver or transfer the funds on deposit in the Sub-Deposit Accounts to another account with Bank, including your Goal Account, to process any transactions or transfers from your Goals Account. As your agent, you authorize Bank to determine the amount of funds to deposit in and withdraw from each Sub-Deposit Account.

You agree that Bank, in its sole discretion, may divide the funds deposited into your Goals Account into one or more separate Sub-Deposit Account to be managed by Bank.

You agree that Bank may comply with any writ of attachment, execution, garnishment, tax levy, restraining order, subpoena, warrant or other legal process that Bank believes (correctly or otherwise) to be valid. We may notify you of such process by telephone, electronically or in writing. If Bank is not fully reimbursed for its record research, photocopying and handling costs by the party that served the process, Bank may charge such costs to your Sub-Deposit Account, in addition to any minimum fee Bank may charge for complying with legal processes.

You agree that Bank may honor any legal process that is served personally, by mail, or by facsimile transmission at any of Bank’s offices or an office of Bank’s agent (including locations other than where the funds, records or property sought is held), even if the law requires personal delivery at the office where your Goals Account or records are maintained.

We may provide your name, tax identification number and other pertinent identifying information to Program Banks, and other parties providing services in connection with the placement of your funds and the establishing and holding of the Sub-Deposit Account.

You agree that we shall have no liability to you for any action taken or omitted by us hereunder in good faith.

You agree to indemnify us and our nominees against, and to hold us and our nominees harmless from, all expenses (including counsel fees), liabilities and claims arising out of the holding, delivery or transfer of the Sub-Deposit Accounts and compliance with any legal process that we believe (correctly or otherwise) to be valid.

iii. Operation of the Program.

a. Accounts at Bank. You agree to establish both a Goals Account and Custodial Account with us and that we may establish a Sub-Deposit Account on your behalf at Bank. Please read the section titled “Your Relationship with Bank and the Program Banks” below.

b. Accounts at Program Banks. As your agent, we will open one or more Sub-Deposit Accounts on your behalf at the Program Banks on the then-current Bank List and act as your custodian for the Sub-Deposit Accounts. At some Program Banks, we may open a money market deposit account (“MMDA”) and a transaction account (“TA”); at other Program Banks, we may open a TA only. Each MMDA and TA are considered a Sub-Deposit Account. The Sub-Deposit Account may not be transferred to another institution, except by us or the Program Bank.

c. Program Bank List. The Bank List of available Program Banks into which your funds may be deposited is available on our website at https://www.getevolved.com/openbanking/fdic-insured-sweep-program/ or by contacting us.  The Bank List may include one or more Program Banks that constitute Excess Banks; we may deposit your funds at an Excess Bank without limit and without regard to Deposit Limit if funds sufficient to meet the Program Insurance Eligibility Limit have been placed at one or more Priority Banks. If all of your funds are withdrawn from a Program Bank, the next time your funds are available for deposit in a Program Bank, your funds may be deposited in a different Program Bank. 

You may at any time, with reasonable advance notice to us at support@dave.com, designate a Program Bank as ineligible to receive your funds. In addition, you may at any time instruct Bank to remove your funds from a Program Bank, close your Sub-Deposit Accounts with the Program Bank and designate the Program Bank as ineligible to receive future deposits. Any funds from a closed Sub-Deposit Account will be deposited into Sub-Deposit Accounts at another Program Bank set forth on the Bank List, as amended by you, or if no other Program Bank is eligible, the funds will be deposited into your Goals Account. For example, if you maintain other accounts at a Program Bank on the list separate from the Program, you may wish to designate this Program Bank as ineligible to avoid the aggregation of funds in your account(s) held directly with funds deposited through the Program as the combination of funds may exceed the amount of available FDIC insurance coverage at that Program Bank.  If you designate all Program Banks as ineligible, we will return funds to your Goals Account and may, in our discretion and in accordance with law, close your Goals Account and any Sub-Deposit Account opened specifically for you.


d. FDIC Deposit Insurance. Bank will place your funds at Priority Banks as your agent in a manner that enables up to $250,000 of your deposits or such other greater amount as may be disclosed to you by us from time to time to be eligible for FDIC insurance through the Program (such amount, the “Program Insurance Eligibility Limit”). From time to time, we may increase the amount of available FDIC insurance through the Program, and you will be notified of such an increase. Any other deposits you have at the Priority Banks outside of the Program may reduce FDIC insurance coverage of your deposits through the Program. Moreover, if you have designated one or more Priority Banks as ineligible to receive your funds, the amount of FDIC insurance for which your funds are eligible may be limited. The depositing of your funds into the Sub-Deposit Account may not increase your FDIC deposit insurance coverage, and may in fact reduce insurance coverage depending on any other deposits you may maintain at a Program Bank.

e. Changes to Bank List. One or more of the Program Banks included on the Bank List may be replaced with a Program Bank not previously included on the Bank List or a Program Bank may be deleted from the Bank List. In addition, Program Banks designated as Priority Banks may be replaced with a Program Bank not previously designated as a Priority Bank or a Program Bank may be removed from the list of designated Priority Banks. We will notify you if the Bank List has changed in accordance with the section titled “Changes to the Program.” Continued use of your Goals Account and/or the Program after receipt of the initial Bank List or notice of subsequent changes to such list will constitute your consent to such list.

An increase in the number of Priority Banks in the future may not increase the potential FDIC coverage available in the Program, and there can be no assurance that additional Priority Banks will be added or your FDIC insurance coverage will increase. A decrease in the number of Priority Banks in the future could decrease the potential FDIC coverage available in the Program. 

You agree that deposits and withdrawals of your funds made after a change to the Bank List will occur as described below under “Deposit Procedures” and “Withdrawal Procedures,” respectively.

If a Program Bank at which you have funds in a Sub-Deposit Account(s) no longer makes the Sub-Deposit Account(s) available through the Program, we may move funds to another Program Bank on the Bank List on or about the day that the Program Bank leaves the Program or return funds to your Goals Account. 

f. Deposit Procedures. You agree that, as your agent, we may open one or more Sub-Deposit Accounts on your behalf at one or more of the Program Banks on the then current Bank List. If we open both an MMDA and a TA at a Program Bank, all deposits will be made into your MMDA and/or TA, subject to six (6) monthly withdrawal limits applicable to MMDA.

You agree that, as your agent, we may place your funds at one or more Program Banks without limit and without regard to the Deposit Limit. You agree that we will place your funds based on each Program Bank’s available capacity or other criteria, including rates paid by Program Banks on Sub-Deposit Accounts or fees paid to us. Please see the section titled “Waiver of Conflicts” for additional information. You understand and agree that deposit amounts in excess of the Deposit Limit at a Priority Bank and deposit amounts at an Excess Bank will not be insured by the FDIC.

Periodically, your previously deposited funds may be reallocated among the Program Banks on a revised Bank List based on each Program Bank’s available capacity or other criteria, including rates paid by Program Banks to us.

You understand and agree that it is your obligation to monitor your funds deposited at all Program Banks. You may email Service Provider at any time at Support@dave.com to determine your Sub-Deposit Account balances at each Program Bank. 

g. Withdrawal Procedures. You agree that all withdrawals will be made by Bank as your agent. Funds may be withdrawn from Program Banks based on a Program Bank’s available capacity or other criteria, including, but not limited to, rates or fees paid to Bank. Funds may also be withdrawn from Sub-Deposit Account to fund transactions associated with your Goals Account. 

If you have an MMDA and a TA at a given Program Bank, all withdrawals will be made from the TA. If funds in the TA at a Program Bank from which funds are being withdrawn are insufficient, funds in the related MMDA at that Program Bank will be transferred to the TA, plus funds to maintain any TA minimum, or “threshold,” amount. 

At any point during a month in which transfers from an MMDA at a Program Bank have reached a total of six (6), all funds will be transferred from that MMDA to the linked TA at the Program Bank until the end of the month. Deposits for the remainder of the month into this Program Bank will be made to the TA. At the beginning of the next month, funds on deposit in the TA will be transferred to the MMDA, minus any threshold amount to be maintained in the TA. The limits on MMDA transfers will not limit the number of withdrawals you can make from funds on deposit at a Program Bank or the amount of FDIC insurance coverage for which you are eligible. 

Pursuant to federal banking regulations, the Program Banks may reserve the right to require seven days’ prior written notice before you withdraw or transfer funds from an MMDA. The Program Banks have indicated that they have no present plans to exercise this right. TAs are not subject to this restriction. 

h. Interest Rates Paid on Deposit Balances. Your Goals Account is an interest-bearing account, and you will accrue interest in accordance with the terms of the subsection titled “Dave Goals Account Disclosures” of this Agreement. Interest will be posted to your Goals Account by Bank, subject to the current Interest and Interest Rate. When determining the balance to be used to calculate interest payments, we will consider the balance in both your Goals Account and Sub-Deposit Account. 

i. Waiver of Conflicts. You understand and agree that, as your agent, we may place any or all of your funds on deposit with us at one or more Program Banks in an amount determined in Bank’s sole discretion based on available capacity at the Program Bank or other criteria, including rates paid on deposits by the Program Bank or fees paid to Bank. 

You understand and agree that Bank has no obligation to place funds into Program Banks to maximize the amount of deposit insurance available on your funds or to maximize any interest rates that your funds may earn. Bank may place your funds without regard to whether such funds may exceed the Deposit Limit at one or more Program Banks, even if your funds could be placed in one or more Program Banks in an amount less than the Deposit Limit. 

You understand and agree that the Program Banks may pay us fees to Bank and that we have no obligation to share these fees with you. You understand and agree that we may financially benefit if we place your funds into a Program Bank in excess of the Deposit Limit when that Program Bank pays a greater amount of fees to us than other Program Banks that could increase the deposit insurance available to you. You further acknowledge and agree that each Program Bank may pay us a fee in connection with the placement of funds with the Program Bank, including for each Sub-Deposit Account. The fee may vary between banks. Even if we receive a fee from a Program Bank, you are not entitled to such fees. For the avoidance of doubt, you authorize us to collect and retain all payments of income pertaining to the placement of your deposits at other Program Banks, including the Sub-Deposit Accounts. You further acknowledge that we and Program Banks may also receive other financial benefits in connection with the funds in your Sub-Deposit Account. 

Our placement of funds in the Sub-Deposit Account may reflect considerations of federal and state law, our funding needs and funding needs of Program Banks, general economic conditions or other factors determined by us in our sole discretion. We may place funds to enhance our business objectives and for balance sheet management purposes without any benefit to you. Subject to applicable law, your only rights with respect to the Sub-Deposit Account are to demand that we repay you all amounts in your Goals Account that were deposited with Bank and those transferred to the Sub-Deposit Account from your Goals Account. 

j. Information About Your Goals Accounts. Although there are two or more accounts associated with your funds (the Goals Account and the Sub-Deposit Account), your Goals Account and Sub-Deposit Account is treated as a single account for accruing interest in accordance with the subsection titled “Dave Goals Account Disclosures” of this Agreement. Transfers to and from the Sub-Deposit Account will not appear on your monthly statement. The funds you deposit with us in your Goals Account (whether or not transferred to a Sub-Deposit Account) will be made available to you in accordance with this Agreement, subject to FDIC insurance limitations. The existence of the Sub-Deposit Account will not change the manner in which you use or obtain information about your Goals Account. 

You will receive, from time to time, periodic information which will reflect the balances of your Sub-Deposit Accounts at each Program Bank for the applicable period. 

k. Your Relationship with Bank and the Program Banks. We will act as your agent and custodian in establishing the Sub-Deposit Accounts at each Program Bank, depositing funds into the Sub-Deposit Accounts, withdrawing funds from the Sub-Deposit Accounts and transferring funds among the Sub-Deposit Accounts. 

Sub-Deposit Account ownership will be evidenced by a book entry on the account records of each Program Bank (or by us on behalf of Program Bank) and by records maintained by us as your custodian. No evidence of ownership, such as a passbook or certificate will be issued to you. You may at any time obtain information about your Sub-Deposit Accounts by contacting Support@dave.com

You agree that all transactions with respect to your Sub-Deposit Accounts must be directed by us and all information concerning your Sub-Deposit Accounts must be obtained from Bank through Service Provider. You agree that the Program Banks have no obligation to accept instructions from you with respect to your Sub-Deposit Accounts or to provide you with information concerning your Sub-Deposit Accounts. 

If you decide to terminate your participation in the Program, your termination will result in a return of funds in accordance with law and closing of your Goals Account and any Sub-Deposit Account opened specifically for you. 

Each Sub-Deposit Account constitutes an obligation of a Program Bank and is not directly or indirectly our obligation. You can obtain publicly available financial information concerning each Program Bank at www.ffiec.gov/nicpubweb/nicweb/nichome.aspx, by contacting the FDIC Public Information Center by mail at L. William Seidman Center, Virginia Square, 3501 North Fairfax Drive, Arlington, Virginia 22226, or by phone at 703-562-2200. 

We do not guaranty in any way the financial condition of any Program Bank or the accuracy of any publicly available financial information concerning any Program Bank. 

l. Fees. You understand and agree that each Program Bank will pay us a fee in connection with the Program. The fee may vary between banks. The amount of any fee received by Bank may not affect the interest rate you receive. Even if Bank receives a fee from a Program Bank, you may not be entitled to such fees.  

In addition, other service providers may receive fees from each Program Bank or Bank and may receive a portion of the fee paid to us by the Program Banks. 

m. Changes to the Program. You agree that we may modify the terms and conditions of the Program, including changing, removing or adding Program Banks offered therein. All notices of material changes to the Program may be communicated by a posting on our website, letter, a separate electronic or written communication, a note on a periodic statement or other means.

iv. Information about the FDIC. 

Deposit Insurance: General. Your Sub-Deposit Accounts are insured by the FDIC, an independent agency of the U.S. Government, up to $250,000 for all deposits held in the same insurable capacity as recognized by the FDIC at any one bank. According to the FDIC, no depositor has ever lost a penny of FDIC-insured funds.

Your funds become eligible for FDIC insurance immediately upon placement into your Sub-Deposit Account at a Priority Bank. Generally, any accounts or deposits that you maintain directly with a particular bank, or through any other intermediary, in the same insurable capacity in which the accounts or deposits are maintained would be aggregated with the accounts or deposits for purposes of the $250,000 Deposit Limit.

You are responsible for monitoring the total amount of deposits that you hold with any one bank, directly or through an intermediary, in order to determine the extent of FDIC insurance coverage available to you on your deposits. We are not responsible for any insured or uninsured portion of any deposits. 

In the event a Priority Bank fails, your Sub-Deposit Accounts at that Priority Bank is insured, up to $250,000, for amounts accrued to the day the Priority Bank is closed. 

Under certain circumstances, if you become the owner of deposits at a Program Bank because another depositor dies, beginning six (6) months after the death of the depositor the FDIC will aggregate those deposits for purposes of the $250,000 Deposit Limit with any other deposits that you own in the same insurable capacity at the bank. Examples of deposit accounts that may be subject to this FDIC policy include joint accounts, “payable on death” accounts and certain trust accounts. The FDIC provides the six-month “grace period” to permit you to restructure your deposits to obtain the maximum amount of deposit insurance for which you are eligible.

In the event that FDIC deposit insurance payments become necessary, payments of deposits will be made to us as your custodian. There is no specific time period during which the FDIC must make insurance payments available. We will not be obligated to you for amounts not covered by deposit insurance nor will we be obligated to make any payments to you in satisfaction of a loss you might incur as a result of a delay in insurance payouts. We will not be obligated to credit your account with funds in advance of payments received from the FDIC.

Furthermore, you may be required to provide certain documentation to the FDIC before insurance payments are made. For example, if you hold deposits as trustee for the benefit of trust participants, you may be required to furnish affidavits and provide indemnities regarding an insurance payment.

If your balance in your Sub-Deposit Accounts are assumed by another depository institution pursuant to a merger or consolidation, such deposits will continue to be insured separately, up to the FDIC insurance coverage limits and subject to the terms hereunder, from the deposits that you might have established with the acquiring institution until (i) the maturity date of any time deposits (including certificates of deposit) that were assumed, or (ii) with respect to deposits that are not time deposits, the expiration of a six (6) month period from the date of acquisition. Thereafter, any assumed deposits will be aggregated with your existing deposits with the acquiring institution held in the same capacity for purposes of FDIC insurance coverage. Any deposit opened at the acquiring institution after the acquisition will be aggregated with deposits established with the acquiring institution for purposes of FDIC insurance coverage.

If you have questions about basic FDIC insurance coverage, please contact us. You may wish to seek advice from your own attorney concerning FDIC insurance coverage of deposits held in more than one insurable capacity. You may also obtain information by contacting the FDIC, Deposit Insurance Outreach, Division of Depositor and Consumer Protection, by letter (550 17^th Street, N.W., Washington, D.C. 20429), by phone (877-275-3342 or 800-925-4618 (TDD)), by visiting the FDIC website at: https://www.fdic.gov/deposit/index.html, or by email using the FDIC’s Online Customer Assistance Form available on its website.

v. Termination. Your participation in the Program may be terminated without penalty at any time at the option of either you or us. You may also opt-out of the Program at any time. Following opt-out or termination of your participation in the Program, we may, if applicable, transfer your funds in the Sub-Deposit Accounts at Program Banks to your Goals Account or, at our sole discretion, terminate your Goals Account and return your funds in accordance with applicable laws and regulations.

C. Insurance Coverage

The FDIC insures deposits according to the ownership category in which the funds are insured. Not all accounts may be insured. Unless otherwise stated by us or the FDIC, the Goals Account is insured by the FDIC up to the standard maximum deposit insurance amount per depositor, per FDIC-insured bank, and per ownership category (the “Standard Insurance Amount” or “SIA”), and, with respect to Sub-Deposit Accounts, please see Section V(B). For purposes of determining the SIA applicable to your Goals Account at Bank, you need to consider all accounts that you also hold at the Bank. To determine SIA applicable to your Goals Account maintained at Bank and for any other FDIC insurance requirements that may apply, please visit the FDIC’s website at www.fdic.gov/deposit/deposits or call the FDIC directly at 1-877-ASKFDIC (1-877-275-3342). You can also use the FDIC’s Electronic Deposit Insurance Estimator (EDIE) at www.fdic.gov/edie.  For insurance coverage on Sub-Deposit Account(s), please refer to Section V(B) for additional information.

D. Legal Processes and Claims Against you or Your Goals Account.

If we receive a levy, attachment, execution, garnishment, tax withholding order, restraining order, subpoena, warrant, injunction, government agency request for information, search warrant, forfeiture or other similar order (“Legal Process”) against you, any party to your Goals Account, or against your Goals Account, we may refuse to permit withdrawals or transfers from your Goals Account until the Legal Process is dismissed or satisfied.  Any Legal Process will be subject to our right of set-off and security interest. You are responsible for any losses, costs or expenses we incur as a result of any dispute or legal proceeding involving your Goals Account.   The fees and expenses may include attorneys’ fees.  We may deduct these fees and expenses from your Goals Account or any account you have with us without prior notice to you.  Subject to any law or government authority prohibiting such disclosure, we may, but are not required to send notice to you of the Legal Process.

E. Our Right of Set-Off and Security Interest

We have the right to set-off any liability, direct or contingent, past, present or future that you owe against any account you have with us. This means that we can take any funds in your Goals Account or any other account you have with us to pay any debt or liability you owe us. You also agree to grant us a security interest in your Goals Account to secure payment of any money that you owe to us or will owe us arising under this Agreement or any other agreements with us. You acknowledge that this security interest is consensual and in addition to any right of set-off. We may exercise our security interest or right of set-off without regard to the source of the funds in your Goals Account or prior recourse to other sources of repayment or collateral, even if it causes you to incur penalties or suffer any other consequence. You waive any conditions or limits to our right of set-off to the maximum extent permitted by law. We will notify you if we exercise our right to set-off if required by law.

If we take any action to collect debt incurred by you or other amounts you owe us under this Agreement or defend ourselves in a lawsuit brought by you where we are the prevailing party, you agree to reimburse us for our losses, including, without limitation, reasonable attorneys’ fees, to the extent permitted by applicable law. We may charge your Goals Account for our losses without prior notice to you.

F. Limitation of Liability and Disclaimer of Warranty

EXCEPT AS REQUIRED BY LAW, WE ARE NOT LIABLE FOR ANY CLAIMS, COSTS, LOSSES, OR DAMAGES RESULTING DIRECTLY OR INDIRECTLY FROM OUR FAILURE TO ACT, OR ANY DELAY BEYOND TIME LIMITS PRESCRIBED BY LAW OR PERMITTED BY THIS AGREEMENT IF SUCH FAILURE OR DELAY IS CAUSED BY MAINTENANCE OR INTERRUPTION OR MALFUNCTION OF EQUIPMENT OR COMMUNICATION FACILITIES, UNUSUAL TRANSACTION VOLUME, SUSPENSION OF PAYMENTS BY ANOTHER FINANCIAL INSTITUTION, FIRE, NATURAL DISASTERS, ELEMENTS OF NATURE, GOVERNMENT ACTION, ACTS OF WAR, TERRORISM OR CIVIL STRIFE, EMERGENCY CONDITIONS, OR OTHER CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF BANK. EXCEPT AS REQUIRED BY LAW, OUR LIABILITY TO YOU FOR A CLAIM IS LIMITED TO THE FACE VALUE OF THE ITEM OR TRANSACTION, OR THE ACTUAL VALUE OF ANY FUNDS NOT PROPERLY CREDITED OR DEBITED. IN NO EVENT WILL WE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE DAMAGES OR DAMAGES OF ANY KIND EVEN IF YOU ADVISE US OF THE POSSIBILITY OF SUCH DAMAGES. 

EXCEPT AS REQUIRED BY LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, WE SHALL ONLY BE RESPONSIBLE AND LIABLE FOR OUR OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN PERFORMING OUR OBLIGATIONS UNDER THIS AGREEMENT. WE SHALL NOT BE LIABLE TO ANY THIRD PARTY OR FOR ANY ACT OR OMISSION OF YOURS OR ANY THIRD PARTY, INCLUDING, BUT NOT LIMITED TO, THIRD PARTIES USED BY US IN EXECUTING ANY TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR PERFORMING A RELATED ACT AND NO SUCH THIRD PARTY SHALL BE DEEMED TO BE OUR AGENT. 

IN ADDITION, EXCEPT AS REQUIRED BY LAW, WE ARE NOT LIABLE OR RESPONSIBLE FOR ANY SERVICES OR FEATURES OF THE SERVICE PROVIDER PLATFORM OR SERVICES ANY OTHER PRODUCTS PROVIDED TO YOU BY SERVICE PROVIDER. WE ARE ALSO NOT LIABLE FOR ANY UNAUTHORIZED ACCESS OF YOUR INFORMATION OR DATA BY A THIRD PARTY DUE TO YOUR USE OF THIRD-PARTY COMMUNICATION CHANNELS NOT OFFERED BY US. 

TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY CLAIM YOU HAVE AGAINST US IN CONNECTION WITH ANY ACCOUNT OR TRANSACTION WITH US, WHETHER BROUGHT AS A WARRANTY, NEGLIGENCE, WRONGFUL DISHONOR OR OTHER ACTION, IS SUBJECT TO REDUCTION TO THE EXTENT THAT: 1) NEGLIGENCE OR FAILURE TO USE REASONABLE CARE ON YOUR PART, OR ON THE PART OF ANY OF YOUR AGENTS OR REPRESENTATIVES, CONTRIBUTED TO THE LOSS WHICH IS THE BASIS OF YOUR CLAIM AND 2) DAMAGES COULD NOT BE AVOIDED BY OUR USE OF ORDINARY CARE.

SUBJECT TO APPLICABLE LAW, ANY LOSS RECOVERY YOU OBTAIN FROM THIRD PARTIES ON A PARTICULAR CLAIM WILL REDUCE THE AMOUNT OF ANY OBLIGATIONS WE MAY HAVE TO YOU ON THAT CLAIM AND YOU WILL IMMEDIATELY NOTIFY US OF ANY SUCH RECOVERY.  YOU AGREE TO PURSUE ALL RIGHTS YOU MAY HAVE UNDER ANY INSURANCE POLICY YOU MAINTAIN IN CONNECTION WITH ANY LOSS AND TO PROVIDE US INFORMATION REGARDING COVERAGE.  SUBJECT TO APPLICABLE LAW, OUR LIABILITY WILL BE REDUCED BY THE AMOUNT OF ANY INSURANCE PROCEEDS YOU RECEIVE OR ARE ENTITLED TO RECEIVE IN CONNECTION WITH THE LOSS.  IF WE REIMBURSE YOU FOR A LOSS COVERED BY INSURANCE, YOU AGREE TO ASSIGN US YOUR RIGHTS UNDER THE INSURANCE TO THE EXTENT OF YOUR REIMBURSEMENT.

G. Changes in Terms and Additional Services

We may change this Agreement, or any fees and features of your Goals Account, at any time by posting an amended Agreement on Dave’s website, Dave.com, or by otherwise providing you a copy with the amended Agreement, and any such amendment shall be effective upon posting. We will give you advance notice of any change where required by law. We may provide such notice to you with your statement, electronically, or by mail. Any notice we provide to you will be binding and sent to the last (postal or electronic) address in our records. We may change your address if we receive an address change notice from the U.S. Postal Service. We may change or terminate this Agreement without notice at our discretion or to comply with any appropriate federal or state law or regulation.

If we make any of our other banking services available to you in connection with Goals Account we may provide certain terms and conditions for those additional services to you in a separate agreement or disclosure.

H. Indemnification

To the greatest extent permitted by law, you agree to indemnify and hold us and our officers, directors, shareholders, employees, successors, predecessors, representatives, principals, agents, assigns, parents, subsidiaries and/or insurers harmless from any losses, damages, suits and expenses, including reasonable attorneys’ fees, that we may incur, without regard to the merit or lack thereof, arising out of, or related in any way to: (i) taking any action or not taking any action that we are entitled to take pursuant to this Agreement; (ii) any action or omission by you; (iii) the matters set forth herein; or (iv) our action or inaction in reliance upon oral, written or electronic instructions or information from you.

I. No Waiver of Rights

We may waive, delay or decline to enforce any of our rights under this Agreement without obligating ourselves to waive such rights in the future or on any other occasion. We may release any other person obligated under this Agreement without affecting your responsibilities under this Agreement.

J. Severability

In the event that any court or tribunal of competent jurisdiction determines that any provision of this Agreement is illegal, invalid or unenforceable, the remainder of this Agreement shall not be affected. To the extent permitted by law, the parties waive any provision of law which prohibits or renders unenforceable any provisions of this Agreement, and to the extent that such waiver is not permitted by law, you and us agree that such provision will be interpreted as modified to the minimum extent necessary to render the provisions enforceable.

K. Governing Law, Forum and Time Limits

The Goals Account is opened at the Tennessee branch office of Evolve. All actions relating to your Goals Spending Account and this Agreement will be governed by the laws and regulations of the United States and the State of Tennessee, irrespective of conflict of law principles. You agree that any dispute arising under this Agreement or relating in any way to your relationship with us that is not arbitrated will be resolved in a federal or state court located in Shelby County, Tennessee and that you will be subject to such court’s jurisdiction.

Except where prohibited by law, you agree that you must file any lawsuit or arbitration against us within one (1) year after the claim arises unless federal or Tennessee law, or another agreement you have with us, provides for a shorter time. If federal or Tennessee law requires a longer time period than the time periods in this Agreement, you agree to the shortest time period permitted under the law.

L. Survival

Termination of this Agreement shall not impact any right or obligation arising prior to termination, and in any event, the parties agree that any right or obligation which, by its nature, should survive termination of this Agreement will survive any such termination.

M. Arbitration and Waivers

THIS ARBITRATION AND WAIVERS SECTION (“ARBITRATION PROVISION”) WILL HAVE A SUBSTANTIAL IMPACT ON HOW LEGAL DISPUTES BETWEEN YOU AND US ARE RESOLVED. PLEASE READ THIS ARBITRATION AND WAIVERS SECTION CAREFULLY. For a dispute subject to arbitration, neither you nor we will have the right to: (1) have a court or a jury decide the dispute; (2) engage in information-gathering (discovery) to the same extent as in court; (3) participate in a class action in court or in class arbitration; or (4) join or consolidate a claim with claims of any other persons. Arbitration procedures are simpler and more limited than rules applicable in court. The decision of the arbitrator is final and binding.

1. Definitions Applicable to This Arbitration Provision

If you have a dispute with us or Dave, and we are not able to resolve the dispute informally, you and we agree that upon demand by either you or us, the dispute will be resolved through the arbitration process as set forth in this section. For purposes of this Arbitration Provision, a “claim” or “dispute” is any unresolved disagreement between you, us and/or Dave, arising from or relating in any way to the Goals Account or this Agreement. The terms “claim” and “dispute” are to be given the broadest possible meaning that will be enforced. This includes, without limitation, any disagreement relating in any way to: your Goals Account or any additional account; services offered in connection with your Goals Account or any other services offered pursuant to this Agreement; your use of any of our banking products or services; any means you may use to access your Goals Account; any advertisements, promotions or oral or written statements related to your Goals Account; the benefits and services related to your Goals Account; to your approval, establishment or enrollment for your Goals Account; and any disagreements about the meaning, application or enforceability of this Arbitration Provision. As solely used in this Arbitration Provision, “we” or “us” shall include Evolve, its affiliates and their successors, employees, directors, officers and agents, and Dave, any third party, their respective subsidiaries, affiliates, licensees, predecessors, successors, and assigns providing any product, service or benefit in connection with this Agreement or your Goals Account if, and only if, such third party is named as a co-party with us (or files a claim with or against us) in connection with a claim asserted by you. The terms “you” or “yours” shall mean each Goals Account owner and all persons or entities approved to have, approved to use and/or given access to a Goals Account. The term “Goals Account,” for purposes of arbitration, includes the Sub-Deposit Account and any updated or substitute Dave Checking Account for you.

2. Binding Arbitration and Appeals

Arbitration applies whenever there is a claim between you and us. If a third party is also involved in a claim between you and us, then the claim will be decided with respect to the third party in arbitration as well, and it must be named as a party in accordance with the rules of procedure governing the arbitration. No award or relief will be granted by the arbitrator except on behalf of, or against, a named party. Claims are subject to arbitration, regardless of on what theory they are based, whether they seek legal or equitable remedies, or whether they are common law or statutory (federal or state) claims. Arbitration applies to any and all such claims or disputes, whether they arose in the past, may currently exist, or may arise in the future.

Judgment upon the arbitrator’s award may be entered by any court having jurisdiction. The arbitrator’s decision is final and binding, except for any right of appeal provided by the Federal Arbitration Act (Title 9 of the United States Code) (“FAA”). However, if the amount of the claim exceeds $25,000 or involves a request for injunctive or declaratory relief that could foreseeably involve a cost or benefit to either party exceeding $25,000, any party can, within thirty (30) days after the entry of the award by the arbitrator, appeal the award to a three-arbitrator panel administered by the forum. The panel shall reconsider a new all factual and legal issues, following the same rules of procedure and decide by majority vote. Reference in this Arbitration Provision to “the arbitrator” shall mean the panel if an appeal of the arbitrator’s decision has been taken.

3. Informal Dispute Resolution

If a claim arises, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. You agree that before filing any claim in arbitration, you will first submit your claim to us by sending an email to support@dave.com at any time.

4. Initiation of Arbitration

Any claim must be resolved, upon the election by you or us, by arbitration pursuant to this Arbitration Provision and the code of procedures of the national arbitration organization to which the claim is referred in effect at the time the claim is filed. Claims shall be referred to  the American Arbitration Association (“AAA”), as selected by the party electing to use arbitration. If a selection by us of one of these organizations is unacceptable to you, you have the right within ten (10) days after you receive notice of our election to select the other organization listed to serve as arbitrator administrator. You may obtain copies of the current rules, forms, and instructions for initiating an arbitration with the AAA by contacting the AAA as follows: on the web at American Arbitration Association | ADR.org  or by writing to American Arbitration Association, Case Filing Services, 1101 Laurel Oak Road, Suite 100, Voorhees, NJ 08043.

In the event that AAA is unable to handle the dispute for any reason, then the matter shall be arbitrated instead by a neutral arbitrator selected by agreement of the parties pursuant to the AAA rules of procedure; or, if the parties cannot agree, selected by a court in accordance with the FAA. To the extent that there is any variance between the selected forum’s rules and this Arbitration Provision, this Arbitration Provision shall control.

If you initiate the arbitration, you must notify us in writing at: support@dave.com. If we initiate the arbitration, we will notify you in writing at your last known address in our file.

5. Class Action and Jury Waiver

NEITHER YOU NOR WE SHALL BE ENTITLED TO JOIN OR CONSOLIDATE DISPUTES BY OR AGAINST OTHERS IN ANY COURT ACTION OR ARBITRATION, OR TO INCLUDE IN ANY COURT ACTION OR ARBITRATION ANY DISPUTE AS A REPRESENTATIVE OR MEMBER OF A CLASS, OR TO ACT IN ANY ARBITRATION IN THE INTEREST OF THE GENERAL PUBLIC OR IN A PRIVATE ATTORNEY GENERAL CAPACITY, UNLESS THOSE PERSONS ARE BENEFICIARIES ON YOUR GOALS ACCOUNT. THIS IS SO WHETHER OR NOT THE CLAIM HAS BEEN ASSIGNED. FURTHER, NEITHER YOU NOR WE SHALL HAVE THE RIGHT TO LITIGATE A CLAIM IN COURT, OR HAVE A JURY TRIAL ON A CLAIM, OR TO ENGAGE IN DISCOVERY, EXCEPT AS PROVIDED FOR IN THE CODE OF PROCEDURES OF AAA.

6. Location of Arbitration and Costs

The arbitration shall take place in Memphis, Tennessee unless the parties agree to a different location in writing. The party initiating the arbitration (or appeal of the first arbitration award) shall pay the initial filing fee. If you file the arbitration and an award is rendered in your favor, we will reimburse you for your filing fee. If there is a hearing, we will pay the fees and costs for the first day of that hearing. All other fees and costs will be allocated in accordance with the rules of the arbitration forum. However, we will advance or reimburse filing and other fees if the arbitrator rules that you cannot afford to pay them or finds other good cause for requiring us to do so, or if you ask us in writing and we determine in good faith there is a justifiable reason for doing so. Each party shall bear the expense of their respective attorneys, experts, and witnesses and other expenses, regardless of who prevails, but the arbitrator will have the authority to award attorneys and expert witness fees and costs to the extent permitted by this Agreement, the forum’s rules, or applicable law.

7. Governing Law for Arbitration

You and we agree that in our relationship arising from this Agreement: (1) the parties are participating in transactions involving interstate commerce; (2) the arbitrator shall decide any dispute regarding the enforceability of this Arbitration Provision; and (3) this Arbitration Provision and any resulting arbitration are governed by the provisions of the FAA, and, to the extent any provision of that act is inapplicable, the laws of the State of Tennessee. The arbitrator must apply applicable substantive law consistent with the FAA and applicable statutes of limitations and claims of privilege recognized at law. At the timely request of either party, the arbitrator must provide a brief written explanation of the basis for the award.

In the event of a conflict between this Arbitration Provision and the applicable codes of procedures of AAA (as applicable), to the extent enforceable under the FAA, this Arbitration Provision shall control. In conducting the arbitration proceeding, the arbitrator shall not apply the Federal or any state rules of civil procedure or rules of evidence. Either party may submit a request to the arbitrator to expand the scope of discovery allowable under the applicable Code. The party submitting such a request must provide a copy to the other party, who may submit objections to the arbitrator with a copy of the objections provided to the request party, within fifteen (15) days of receiving the requesting party’s notice. The granting or denial of such request will be in the sole discretion of the arbitrator who shall notify the parties of his/her decision within twenty (20) days of the objecting party’s submission. The arbitrator shall take reasonable steps to preserve the privacy of individuals, and of business matters. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision will be final and binding, except for any right of appeal provided by the FAA. However, any party can appeal that award to a three-arbitrator panel administered by the same arbitration organization, as set forth in this Arbitration Provision.

8. Continuation and Severability of Arbitration Provision and Waivers

This Arbitration Provision shall survive termination of your Goals Account, this Agreement and any bankruptcy by you or us. If any portion of this Arbitration Provision is deemed invalid or unenforceable under any principle or provision of law or equity, consistent with the FAA, it shall not invalidate the remaining portions of this Arbitration Provision, this Agreement or any prior agreement you may have had with us, each of which shall be enforceable regardless of such invalidity.

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