Dave Spending Account Deposit Agreement and Disclosures
Last Updated 08/01/2023
Please read this Dave Deposit Account Agreement (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 (“Dave Spending Account” or “Spending Account”) and Dave Debit Mastercard® (“Dave Card” or “Dave Debit Card”) 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 the Dave Spending Account, as well as 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 Dave Spending Account or Dave Card, 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 the Spending Account or Dave Card, 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 Spending 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 Dave Spending Account.
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 VII(L) OF THIS AGREEMENT.
I. Dave Spending Account Basics
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.
Compounding and Crediting - Interest on your account will be compounded and credited on a monthly basis 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. For cash deposits, interest will begin to accrue the same 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.
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.
A. What Is a Dave Spending Account?
B. Dave Spending Account Eligibility
The Dave Spending 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. The Dave Spending Account is only available to individuals for personal, family or household purposes and may not be opened by a business in any form, used for business purposes, and may not accept any Paycheck Protection Program (“PPP”) loan funds.
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 delivery of all communications that we need or decide to send you in connection with your Dave Spending Account. Please refer to the Dave 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 Dave Spending Account or issue a Dave Card to 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 refusal of a Dave Spending Account relationship.
C. Titling and Ownership of Dave Spending Accounts
The Dave Spending Account may only be owned in the name of one person who may make deposits and transfer or withdraw funds. The Dave Spending 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.
D. How To Open a Dave Spending Account
You may apply for a Dave Spending Account by submitting a request through the Mobile App and providing all requested information.
Important information about procedures for opening a new Dave Spending 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 Dave Spending Account. This means that when you open a Dave Spending 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.
E. No Minimum Deposit or Balance
There is no minimum deposit required to open a Dave Spending Account and no minimum balance you need to maintain in your Dave Spending Account.
F. Power of Attorney and Attorneys-In-Fact
Dave only allows you to give another person (known as an “attorney-in-fact”) power of attorney to act on your behalf for your Dave Spending Account on a case-by-case basis. You must submit a written request to grant another person power of attorney to act on your behalf for your Dave Spending Account by contacting us at Support@dave.com .
G. 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 Dave Spending Account and refuse all transactions until we know and have verified the identify 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 Dave Spending Account. Your estate will be responsible for repaying us for any tax liability resulting from 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 certain payments originating from government entities are deposited into your Dave Account after your death, we may be required to return those payments to the originator upon notice. 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 Dave Spending Account after your death.
H. Our Relationship With You
By opening a Dave Spending Account, we are establishing a Dave Spending 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 Dave Spending Account relationship do not create a fiduciary relationship or any other special relationship between you and us.
Your privacy is very important to us. Under this Agreement, we will generally only disclose information to third parties about your Dave Spending Account or the transactions you make:
- To verify your identity and determine if we should open a Dave Spending Account for you or issue you a Dave Card using services provided to us by third parties.
- Where it is necessary for completing a transaction.
- To verify the existence and condition of your Dave Spending Account for a third party such as a credit bureau or merchant.
- To comply with government agency or court orders.
- If you give us your written permission to share your information.
J. Cell Phone Communications
By providing us with your telephone number for a cellular phone or other wireless device, you are expressly consenting to receiving non-marketing communications at that number—including but not limited to prerecorded or artificial voice message calls, text messages, and calls made by an auto-dialer—from us and our affiliates and agents, as well as Dave and its affiliates and agents. This consent applies to all telephone numbers you provide to us now or in the future. Your telephone or mobile service provider may charge you for these calls or messages. You also agree that we may record or monitor any communications for quality control and training purposes.
K. Services and Features Offered Through Third Parties
Some of the services and features available to you in connection with the Dave Spending Account may be offered by third parties (“Third-Party Services”) and are not operated or managed by Evolve. These Third-Party Services may be accessible through hyperlinks within the Mobile App that will take you to the third party’s website, online portal, or mobile application. We do not control Third-Party Services, nor are Third-Party Services governed by this Agreement. Before any Third-Party Services are enabled for your Dave Spending Account or before you use them for the first time, Dave will provide you with, and must agree to, separate terms, conditions, disclosures and/or privacy policies specific to those Third-Party Services.
L. Our Business Days
Our business days are Monday through Friday, excluding federal holidays.
M. How to Contact Us
You may contact Dave with any questions or concerns regarding your Dave Spending 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 firstname.lastname@example.org.
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 that your Dave Card has been lost or stolen, (2) report unauthorized activity on your Dave Account, or (3) notify us of an error involving a transaction on your Dave Account.
II. Your Dave Spending Account Responsibilities
We strive to keep your Dave Spending Account secure and provide you with tools and services to help you manage your Dave Spending Account and Dave Card. However, there are certain things you should do to protect your Dave Spending Account, Dave Debit Card 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 Dave Spending 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 Dave Spending Account that are available for you to use (“Available Balance”) by maintaining a checkbook or 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 presented to us for payment.
You are also responsible for reviewing your Dave Spending 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. Protect Your Dave Spending Account and Dave Card Information
It is very important that you protect your Dave Spending Account and Dave Card information to prevent unauthorized transactions and fraud. Keep your Dave Spending Account number, statements, and Dave Card secure at all times, and be careful about who you share this information with. Make sure to also keep your mobile device secure at all times and avoid accessing the Mobile App when others can see your screen. Never share you login credentials or passwords with anyone under any circumstances.
If your Dave Spending Account number, Dave Card, mobile device or Mobile App login credentials are lost or stolen, notify us immediately to limit your liability for unauthorized transactions that may occur. Please refer to Section V(F) for information and applicable deadlines for notifying us of losses or theft.
III. General Rules Governing Your Dave Spending 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.
Your account limits may be lower but never to exceed the limits stated for deposits and withdrawals below in subsections A and B:
A. Making Deposits Into Your Dave Spending Account
You may make deposits into your Dave Spending Account using any of these methods described below. Special limitations apply to Dave Spending Accounts open less than thirty (30) calendar days from the date you first use your Dave Card to conduct at least one transaction (“New Accounts”). We do not charge you any fees for making deposits. However, you may be charged fees and be subject to additional limitations for cash loads by Green Dot®. We do not control these fees or limitations.
|Deposit Method||Limitations for Your Dave Spending Account|
|Direct deposits1||No maximum frequency Maximum Amount $25,000 per day $25,000 per month|
|ACH transfers to your Dave Spending Account from a linked bank account using the Mobile App2||Maximum Frequency 5 per month Maximum Amount $1,000 per month|
|Intrabank transfers to your Dave Spending Account from a Dave Goals Account using the Mobile App2||Maximum Frequency 6 per month Maximum Amount $3,000 per month|
|Wallet Funding using Apple Pay or Google Pay3||Maximum Transfers 3 per day $25 minimum per transfer $1,000 maximum per transfer|
|Non-Wallet Debit Card Funding||No maximum frequency Minimum Amount $10 Maximum Amount $1000 per month|
|Instant Deposit via Debit Card||Maximum amount $3500 per month|
|Green Dot® cash loads at the register4||Per Transaction: Min $20 – Max $500 (*Walmart will have a maximum per transaction limit of $1000) Daily Max: $1500 (4 Txn) Weekly Max - $3500 (7 Txn) Monthly Max: $5000 (20 Txn)|
|Green Dot® cash loads with Barcode||Per Transaction: Min $20, Max $500 Daily Max: $1,500/ 4 Transactions Weekly Max: $3,500/ 7 Transactions Monthly Max: $5,000/ 20 Transactions|
|1 The recipient’s name on any direct deposit or ACH transfer must match the name on the Dave Spending Account or the deposit may be returned to the originator.2 You may transfer funds between your Dave Spending Account and another bank account. The linked bank account must be located in the United States.3 Funds transferred through your debit card will generally appear in your Dave Spending Account within one (1) hour. If you use Google Pay or Apple Pay to initiate the debit card transfer, they may impose their own fees and/or limitations on the frequency or amount of funds you may transfer to your Dave Spending Account.4 Green Dot® cash loads will generally appear in your Dave Spending Account within 30 minutes. Green Dot® may impose its own fees and/or limitations on the frequency or amount of cash you may load to your Dave Spending Account.|
Apple Pay, Google Pay and Debit card transfers: You can transfer funds from a bank account you have with another financial institution through the Mobile App using an Apple Pay or Google Pay account connected to a debit card associated with that bank account. You may also be given the ability to use a debit card that is not connected to an Apple Pay or Google Account, although this capability may not be available at all times or to all consumers. If this capability is available to you, the option will be accessible to you within the Mobile Application. Using Apple Pay, Google Pay, or a debit card to transfer funds allows you to access those funds from your Dave Spending Account faster than an ACH transfer. There is a fee for this type of transfer. Please refer to Section III(L) for information concerning fees applicable to your Dave Spending Account.
We do not accept deposits by wire transfer, mail, or cash outside of GreenDot® cash reload locations, paper check or foreign currency deposits: We are not liable for wire transfers that you may attempt into your Dave Spending 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: Accepted through GreedDot® cash reload locations. Do not mail us cash as a deposit.
- Paper Checks: Do not mail us a paper check unless requested by us in writing. 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 Dave Spending 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.
Unless we apply the check to any negative balance, we will attempt to 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 III(B).
B. Our Funds Availability Policy – Your Ability to Use Your Funds
Deposits may only be made by Electronic Fund Transfer, which includes direct deposits, Automated Clearing House (“ACH”) transfers from a linked bank account, Google Pay or Apple Pay transfers, debit card transfers, or by a Green Dot® cash load at the register cash load. 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.
C. Problems that Could Occur With Deposits
If a deposit or transfer to your Dave Spending 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 Dave Spending Account at the time, your Dave Spending Account may become overdrawn. Please refer to Section III(I) concerning overdrafts for more information.
D. Withdrawals From Your Dave Spending Account
You may withdraw funds up to the amount of your Available Balance in your Dave Spending Account by Electronic Fund Transfer using any of the following methods. Special limitations apply to withdrawals for New Dave Spending Accounts.
You will not be charged a fee for any withdrawals made through Automated Teller Machines (“ATMs”) that are within the MoneyPass® network. However, we do charge a fee if you withdraw from an out-of-network ATM. Other third-party fees may also apply to out-of-network ATM transactions. Please refer to the Fee Schedule in Section III(L) for more information and all fees applicable to your Dave Spending Account.
|Withdrawal Method||Maximum Limits|
|ACH transfers from your Dave Spending Account to a linked bank account using the Mobile App*||5 per month Maximum Amount $3,000 per day $1,000 per month|
|ACH transfer to a merchant or other third party you authorize to withdraw from your Dave Spending Account using your routing number and account number||Maximum number of transactions 2 Maximum limit $500 per day No limit to the number of times per calendar day No maximum dollar limit|
|ATM withdrawals using your Dave Card||Maximum Frequency 5 per day Maximum Amount $500 per day|
|Total Daily Cash Withdrawal (ATM + Cash Back)||$750 per day|
|Payments made to third parties through Send a Check||No maximum frequencyMaximum Amount $5,000 per month|
|Purchases or other transactions using your Dave Card at merchants that have agreed to accept the Dave Card||No maximum frequencyMaximum Amount $5,000 per day|
|Total Withdrawal Limit Combined (POS, ATM, Cash Back at POS)||$5,500 per day|
|* You may transfer funds between your Dave Spending Account and another bank account. The linked bank account must be located in the United States.For security reasons, your Dave Spending Account may be subject to additional, security-related limitations. See Section VI(B) below regarding Limitations on EFTs for further details.|
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 Dave Spending Account in order to transfer funds between the linked bank account and your Dave Spending 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.
F. No Illegal Activity, Internet Gambling and Right to Refuse Transactions
You must not use your Dave Spending Account or Dave Card for any illegal purposes or, and regardless of whether it is legal or illegal, for Internet gambling. We may deny any transaction or refuse to accept any deposit that we believe is related to illegal activity, online gambling or for any other reason at our discretion.
G. How We Post Transactions To Your Dave Spending Account and Determine Your Available Balance
1. Posting Order
To understand how we post transactions to your Dave Spending 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 Dave Spending Account at any given time that is available for you to use, pending any holds. Your ledger balance is the balance in your Dave Spending 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 Dave Spending 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 Dave Spending Account. Pending transactions affect your Available Balance, but not your ledger balance.
- Posting Order We receive transactions throughout the day and post them to your Dave Spending 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 (1) transactions you have authorized that we have not received, (2) Dave Card transactions where the card authorization has been removed before the transaction is settled due to a merchant’s delay in settlement, or (3) the full amount of a Dave Card transaction where the settlement amount is greater than the card authorization amount.
Statements will periodically be provided to you by email as long as your Dave Spending Account is not inactive. You will receive a statement monthly as long as you have transactions on your Dave Spending Account during the statement period. If there were no transactions on your Dave Spending Account, we will provide you statements at least quarterly. You will not receive paper statements.
I. Overdrafts and Negative Balances
We do not permit you to overdraw your Dave Spending Account and we do not charge you insufficient funds fees or overdraft fees. If the Available Balance in your Dave Spending 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 Dave Spending Account can still become overdrawn. For example, if a deposit is returned or if a merchant settles a Dave Card transaction for an amount greater than the card authorization. You must make a deposit immediately to cover any negative balance. If your Dave Spending Account has a negative balance for sixty (60) calendar days or more, we may close your Dave Spending Account.
J. Closing Your Dave Spending Account and Account Suspensions
You can close your Dave Spending Account at any time and for any reason by submitting a request through the Mobile App or by contacting Dave by email at email@example.com. It is important to understand that simply reducing your Available Balance to zero ($0) is not sufficient to close your Dave Spending Account. We reserve the right to refuse your request if you have a negative balance on your Dave Spending Account.
We may also suspend or close your account at our discretion and for any reason with or without notice. This includes if we believe you are using your Dave Spending Account or Dave Card 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 undue risk to us or Dave. We are not responsible to you for any damages you may suffer as a result of the closure or suspension of your Dave Spending Account.
Subject to federal law, if your Dave Spending Account is closed, we will return your funds to you by paper check. We reserve the right to delay or limit funds reimbursement while we screen for risks, or we may request additional information to verify your identity. We may also defer or redirect payout or restrict access to your funds as necessary with applicable law, subpoena or court order, or if requested by any governmental agency. We reserve the right not to return funds to you if your account balance is one dollar ($1) or less. The closure of your Dave Spending 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).
K. Dormancy, Inactivity and Unclaimed Property
State and federal law and our policy govern when your Dave Spending Account is considered dormant. Your Dave Account is usually considered dormant if you have not accessed your Dave Spending Account, communicated to us about your Dave Account or otherwise shown an interest in your Dave Spending 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 Dave Spending 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 Dave Spending 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 Dave Spending Account, conducting transactions, contacting us about your Dave Spending Account or replying to any abandoned property notices we may provide to you.
We may also place your Dave Spending Account in an inactive status if you have not had any transactions for at least six (6) months. We may close your account if it is inactive status. So long as your account remains open, you may reactivate it by contacting us at Support@dave.com
L. Fees and Fee Schedule
You agree to pay all fees and charges applicable to your Dave Spending Account and Dave Card. All fee amounts will be withdrawn from your Dave Spending Account and will be assessed as long as there is a remaining balance in your Dave Spending Account, except where prohibited by law. Any time your remaining balance is less than the fee amount being assessed, the balance of your Dave Spending Account will be applied to the fee amount resulting in a zero balance on your Dave Spending Account. Fees are subject to change at any time. We will provide you advance notice of any changes where required by law.
|Fee Description||Fee Amount and Frequency||Additional Details|
|External Debit Card Withdrawals||1.5% (per transaction||This is a fee charged by our payment processing vendor Stripe|
|Apple Pay, Google Pay and Debit Card Transfers||1% of the amount transferred (per transaction)||Google Pay or Apple Pay may charge their own fees.|
|Out-of-Network ATM Withdrawals*||$2.50 (per transaction)||Transactions at MoneyPass® ATMs are fee-free.|
|Foreign ATM Transaction Fee||3% of transaction amount||This is our fee. You may also be charged a fee by the ATM operator or other third party.|
|*We will charge you a fee for withdrawals made at any ATM that is not part of the MoneyPass® network. You may also be charged fees for transactions, including balance inquiries, by the out-of-network ATM operator even if you do not complete a withdrawal. Such fees will be charged to your Dave Spending Account by the ATM operator, and we do not control these third-party fees. Look for the MoneyPass® logo near the ATM or on the ATM screen to avoid paying any of these fees.|
IV. Using Your Dave Debit Mastercard
You must request a Dave Debit Card for your Dave Spending Account; one will not be sent out automatically upon account opening. The Dave Debit Card is a debit card that allows you to access funds in your Dave Spending Account up to your Available Balance. You may not use the Dave Debit Card for online gambling or for any illegal transactions or any transfer prohibited by Mastercard. The Dave Debit Card will expire on the expiration date printed on the back of the Dave Debit Card. As long as your Dave Spending Account is in good standing, we will send you a replacement Dave Debit Card as your expiration date nears.
The Dave Debit Card is the property of Evolve and must be surrendered upon demand. The Dave Debit Card is nontransferable, and it may be cancelled, repossessed or revoked at any time without prior notice except where required by law.
Not all services or features of your Dave Debit Card described in this Agreement are available to all persons or at all locations. Any offer of a service or feature of your Dave Debit Card in this Agreement will be deemed void where prohibited. Use of the Dave Debit Card is also subject to all applicable rules and customs of any payment network, clearing house or other association involved in transactions in addition to this Agreement.
A. Activating the Dave Card and Setting a PIN
You must activate your Dave Debit Card by following the instructions that come with the Dave Debit Card before it can be used; this includes setting a Personal Identification Number (“PIN”). Do not write down your PIN or give your PIN number to anyone. You may be required to provide personal information to verify your identity to complete the activation process. You agree to sign the back of your Dave Debit Card immediately upon receipt.
B. No Secondary Cardholders
The Dave Debit Card is solely for your use and you may not request an additional card for another person. If you give anyone else access to your Dave Debit Card, we will treat any transaction they initiate as authorized by you and you will be responsible for all transactions and fees that occur.
C. ATM and Point-of-Sale PIN Withdrawals
With your PIN, you can use your Dave Debit Card to obtain cash from your Dave Spending Account up to your Available Balance at any ATM or any Point-of-Sale (“POS”) device in the United States that displays the Mastercard, Visa Plus, Plus, Interlink, Maestro, MoneyPass or Cirrus acceptance marks. Not all merchants will permit you to get cash back through their POS devices.
If you use an ATM not owned by MoneyPass for any transaction, including a balance inquiry, you may be charged a fee by the ATM operator even if you do not complete a withdrawal. This ATM fee is a third-party fee amount assessed by the individual ATM operator only and is not assessed or controlled by us. This ATM fee amount will be charged to your Dave Spending Account.
D. Retail Card Purchases
You may use your Dave Debit Card to make purchases using your PIN at any merchant with a POS device anywhere that displays the Mastercard, Visa Plus, Plus, Interlink, Maestro, MoneyPass or Cirrus acceptance marks. You may also use your Dave Card to make purchases without your PIN anywhere that Mastercard debit cards are accepted.
E. Split Transactions
You can instruct a merchant to charge your Dave Debit Card for part of a purchase and pay any remaining amount with cash or another card. This is called a “split transaction.” Some merchants do not permit split transactions. If you wish to conduct a split transaction, you must tell the merchant the exact amount you would like charged to your Dave Debit Card. If you fail to inform the merchant you would like to complete a split transaction and you do not have sufficient available funds in your Dave Spending Account to cover the entire purchase amount, your Dave Debit Card is likely to be declined.
F. Card-Not-Present Transactions
You may make retail card purchases without presenting your Dave Debit Card by providing information from your Dave Debit Card, such as transactions done by internet or telephone. Conducting transactions in this way has the same legal effect as if you used the plastic Dave Debit Card itself. For security reasons, the amount or number of such transactions you may make may be limited.
G. Virtual Dave Card
When you open a Dave Spending Account, you will automatically receive a virtual card (“Virtual Dave Card”) represented by a 16-digit card number, a 3-digit card verification value (“CVV”) number and an expiration date. The Virtual Dave Card is separate from your physical Dave Card, has a different card number, and can be managed through the Mobile App. We will issue you a replacement Virtual Dave Card when it expires. The Virtual Dave Card accesses the available funds in your Dave Spending Account to make card-not-present transactions (see Section IV(F)) anywhere Mastercard debit cards are accepted in the same way as your physical Dave Debit Card. The Virtual Dave Card can also be added to a digital wallet (see Section IV(M)) in the same way as your physical Dave Debit Card. Your use of the Virtual Dave Debit Card is subject to the terms of this Agreement, including transaction limitations, to the same extent as your physical Dave Debit Card.
H. Foreign Transactions
You may use your Dave Debit Card to purchase goods and services for retail purchases with international merchants in the following regions: Canada, Mexico, United Kingdom so long as Mastercard is accepted by such merchants. Dave may block transactions in certain foreign countries. If you obtain funds or make a purchase in a currency other than U.S. dollars, the amount deducted from the Available Balance of your Dave Spending Account will be converted by Mastercard into an amount in U.S. dollars. The exchange rate between the transaction currency and the billing currency used for processing international transactions is a rate selected by Mastercard from the range of rates available in wholesale currency markets for the applicable central processing date, which may vary from the rate Mastercard itself receives, or the government-mandated rate in effect for the applicable central processing date. The conversion rate may be different from the rate in effect on the date of your transaction and the date it is posted to your Dave Spending Account.
We will charge you a fee for transactions conducted at ATMs outside the United States. We do not charge you fees for other types of foreign transactions. Some merchant and ATM transactions, even if you and/or the merchant or ATM are located in the United States, are considered international transactions under the applicable network rules, in which case we will add Foreign ATM Transaction Fee to those transactions. Please refer to the Fee Schedule in Section III(L) for details. You may also be charged fees by third parties.
I. Card Authorization Holds
When you use your Dave Debit Card to purchase goods or services or to obtain cash from a merchant, the merchant may request preauthorization (“Card Authorization”) for the transaction. If the merchant makes such a request and there are sufficient available funds in your Dave Spending Account, we will approve the transaction and place a temporary hold on the funds in your Dave Spending Account. This hold will reduce the Available Balance in your Dave Spending Account. The amount of this temporary hold will usually be the amount of the Card Authorization. However, we will apply a hold for a different amount predetermined by us for transactions at certain types of merchants. If you use your Dave Debit Card at a restaurant, hotel or rental car company, automated fuel dispenser ("pay at the pump"), the transaction may be preauthorized for an amount up to $75.00 or more.
The hold will remain on your Dave Spending Account until the merchant sends the final amount of the transaction to us and requests payment (“Settlement”). If the merchant does not request Settlement or is delayed in requesting Settlement, it may take up to seven (7) calendar days for the hold to be removed for most transactions. For transactions at hotels, it may take up to thirty (30) days for the hold to be removed. For transactions at rental car companies, it may take up to sixty (60) days for the hold to be removed.
Please note that the merchant controls the timing of both the Card Authorization and Settlement. This means that a merchant may initiate Settlement after the Card Authorization hold has already been removed. If the hold is removed and you spend the funds in your Dave Spending Account before Settlement, it may cause your Dave Spending Account to overdraw. In addition, the Card Authorization amount that the merchant requests may be different than the Settlement amount. It is therefore very important that you keep track of your transactions and your Dave Spending Account. We cannot stop a Dave Debit Card transaction once we have approved a Card Authorization and you will be responsible for repaying any negative balance that may occur in your Dave Spending Account.
J. Returns and Refunds
Please be aware of the merchant’s return policies before using your Dave Debit Card to make a purchase. Neither we nor Dave is responsible for the delivery, quality, safety, legality or any other aspect of the goods or services you purchase using your Dave Debit Card. If you have a problem with a purchase that you made with your Dave Debit Card or if you have a dispute with the merchant, you must handle it directly with the merchant. If you are entitled to a refund for any reason for goods or services obtained using your Dave Debit Card, you agree to accept credits to your Dave Debit Card for the refund and agree to the refund policy of the merchant. The amounts credited to your Dave Debit Card for refunds may not be available for up to five (5) days from the date the refund transaction occurs.
K. Freezing Your Dave Debit Card
You have the ability to “freeze” your Dave Debit Card or your Virtual Debit Card through the Mobile App if you misplace your Dave Debit Card. Freezing your Dave Debit Card will disable it and prevent it from being used. You may also remove the freeze through the Mobile App. However, you should always contact us immediately if you believe your Dave Debit Card has been lost or stolen even if you have frozen your Dave Card through the Mobile App. Please refer to Section V(F) for information on lost or stolen Dave Debit Cards and how to limit your liability for unauthorized transactions.
L. Replacing Your Dave Card
If you need to replace your Dave Card for any reason, please contact us through the chat feature in the Mobile App Monday through Saturday between 6:00 AM Pacific Time and 4:00 PM Pacific time; outside of these hours you can email Dave at firstname.lastname@example.org or call us at 1-844-857-3283. You will be required to provide personal information so that we may verify your identity before we will issue you a replacement Dave Debit Card.
If you believe your Dave Debit Card has been lost or stolen, you may immediately disable your Dave Debit Card by contacting us at call 1-844-857-3283. We may cancel any Dave Debit Card that has been disabled for sixty (60) calendar days or longer.
M. Use of the Dave Card With Digital Wallets
A digital wallet (“Wallet”) provides another way for you to make purchases with your Dave Card. A digital wallet is a service provided by another company (such as Apple Pay, Android Pay, Samsung Pay, etc.), that allows you to use your Dave Card to enter into transactions where the Wallet is accepted. A Wallet may not be accepted at all places where your Dave Card is otherwise accepted, and your Dave Card may not be eligible for all the features and functionalities of the Wallet. Any use of your Dave Card in or through the Wallet continues to be subject to all terms and conditions of this Agreement. We may terminate your access to or use of your Dave Card with a Wallet at any time and for any reason, including if you violate any of the terms or conditions of this Agreement.
You can add or remove your Dave Card from a Wallet by following the instructions provided by the Wallet provider. By doing this, you agree to allow us to share your Dave Card information with the Wallet provider. You may be required to take additional steps to authenticate yourself before your Dave Card is added to the Wallet. We do not charge you any additional fees for adding your Dave Card to a Wallet or for using your Dave Card in the Wallet. However, any fees and charges that would apply when you use your Dave Card outside the Wallet will also apply when you use a Wallet to make purchases with your Dave Card or otherwise access your Dave Card. The Wallet provider and other third parties such as wireless companies or data service providers may charge you fees. The digital version of your Dave Card in a Wallet may, in our sole discretion, be automatically updated or upgraded without notice to you.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY ARE WE LIABLE FOR ANY LOSSES OR DAMAGES RESULTING FROM YOUR USE OF A WALLET, YOUR USE OF THE DAVE CARD OR VIRTUAL DAVE CARD IN CONNECTION WITH A WALLET, OR A MOBILE DEVICE.
If you use a Wallet, you should protect your Wallet and your mobile device as you would your Dave Card. If your Wallet or mobile device is compromised, lost or stolen, you should also consider your Dave Card lost or stolen and notify us immediately. Please see Section V(F) for instructions for reporting a lost or stolen Dave Card.
If you have any questions, disputes, or complaints about a Wallet, contact the Wallet provider using the information given to you by the provider.
O. Suspension and Cancellation
We may refuse to issue, deactivate, revoke, suspend or cancel your Dave Debit Card at any time with or without notice to you, other than as required by law. This includes deactivating or canceling your Dave Debit Card if it has been lost or stolen to prevent unauthorized transactions. You agree not to use your Dave Debit Card once it has been deactivated, revoked, suspended or canceled. We may also limit your use of the Dave Debit Card, including limiting or prohibiting specific types of transactions. If you would like to cancel your Dave Debit Card, you may do so at any time by contacting us through the chat feature of the Mobile App or by emailing Dave at email@example.com.
The cancellation of your Dave Debit Card privileges will not otherwise affect your rights and obligations under this Agreement.
V. “Send a Check” Service
When you open a Dave Spending Account, you will be given access to the “Send a Check” Service accessible through the Mobile App. Send a Check allows you to authorize us to make payments in the form of a paper check on your behalf to third parties. There are no fees for making payments through Send a Check. Payments may only be sent to mailing addresses within the United States.
To initiate a Send a Check payment, you must provide the name and mailing address of each individual or company you wish to pay, as well as any other information requested through the Mobile App. You are responsible for verifying the completeness and accuracy of all information you give us for Send a Check payments. Neither we nor Dave is liable for losses resulting from incorrectly entered information on Send a Check payments.
A. How Send a Check Payments Are Processed
By using Send a Check, you authorize us to follow the payment instructions you have provided to us through the Send a Check service. The amount of the payment will be deducted from your Dave Spending Account and sent to the merchant or other third party on your behalf in the form of a paper check drawn on a third-party account at another bank. Checks will be sent on the business day following the date we process your payment request using standard U.S. Postal Service mail. Please allow three (3) to nine (9) days for delivery of the check to account for mailing time (“Delivery Time”). You are responsible for initiating Send a Check payments so that your payment is received prior to any applicable due dates. Neither we nor Dave is liable for any late penalties or fees assessed due to late Send a Check payments if they are delivered within the Delivery Time. The amount of the Send a Check payment will be immediately deducted from your Available Balance on the business day we process your payment. Send a Check payments are processed each business day by 6:00 AM Pacific Time. Payments you authorize after this time or on a non-business day will be processed by 6:00 AM Pacific Time the next business day. We reserve the right to refuse to process payments to any individual or company.
B. Returned or Uncashed Send a Check Payments
Send a Check payments may be refused or returned by the individual or company to whom the payment was issued. The determination to accept this method of payment is at the sole discretion of the individual or company you wish to pay. Send a Check payments may also be returned by the U.S. Postal Service in cases of expired or invalid addresses. If a payment is returned to us for any reason, the check will be voided and the full amount credited to your Dave Spending Account within one business day.
Uncashed Send a Check payments will be voided after 180 days. The full amount of the payment will be credited to your Dave Spending Account within one business day.
C. No Cancellations
Please make sure you provide us with accurate information when requesting a Send a Check payment. Once you have authorized a Send a Check payment, we cannot prevent the payment from being processed or the amount of the check from being deducted from your Dave Spending Account. If you do make a mistake, contact us right away through the chat feature of the Mobile App or by email at firstname.lastname@example.org and we can attempt to have the check that was mailed voided and help you obtain a refund or have a new check issued using the correct information.
D. Payments to the Government and Court-Ordered Payments
We discourage you from initiating Send a Check payments to government entities (such as tax payments) or to make payments under a court order, you may choose to do so at your own risk. In no event will we or Dave be liable for any claims, losses or damages resulting from you authorizing such payments, and neither we nor Dave have any obligation to research or resolve any claims that may arise. You will be solely responsible for researching and resolving any misapplied, mis-posted or misdirected Send a Check payments sent to government entities or pursuant to a court order.
VI. Electronic Fund Transfers
Your Dave Spending Account and the Dave Card allow 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, ATM withdrawals, and cash loads through Green Dot®. This Section provides you with information and important disclosures and terms about the EFTs that are permitted on your Dave Spending Account or in connection with your Dave Card. You may also receive additional services from Dave through the Mobile App, that allow you to initiate EFTs to and from your Dave Spending 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 Dave Spending Account
Your Dave Spending Account allows the following types of EFTs:
- Direct deposits from your employer or other source of income
- Cash loads to your Dave Spending Account using Green Dot® reload at the register
- Transfers to your Dave Spending Account using your Apple Pay, Google Pay or debit card
- Transfers to or from your Dave Spending Account to a linked bank account through the Mobile App
- Transfers to or from your Dave Spending Account to a merchant or other third party by providing the third party with your Dave Spending Account routing number and account number
- Payments to merchants and other third parties using the Send a Check feature
- Purchases or other transactions using your Dave Debit Card at merchants that have agreed to accept the Dave Debit Card
- ATM withdrawals using your Dave Debit Card
B. Limitations on EFTs
There are limitations on the frequency and amount of transactions you can make to or from your Dave Spending Account. These limits are different for each type of transaction. For limits that apply to transactions that credit or deposit funds into your Dave Spending Account, please refer to Section III(A) concerning deposits. For limits that apply to transactions that debit or withdraw from your Dave Spending Account, please refer to Section III(D) concerning withdrawals.
For security reasons, your Dave Spending 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 Dave Spending Account in addition to those described in Sections III(A) and III(D). These additional limitations are based on your account information and the transaction history of your Dave Spending Account and your linked bank account(s). 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
You will receive information and documentation concerning any EFTs that debit or credit your Dave Spending Account in the following ways:
- Statements: We will provide you information about each transaction that debits or credits your Dave Spending Account on your statements. Please refer to Section III(H) for information about statements. You may also view your transaction history at any time through the Mobile App.
- Direct Deposits: If you receive a direct deposit into your Dave Spending Account at least once every sixty (60) days from your employer or other person or company, you can check if the deposit has been made by reviewing your transaction history in the Mobile App or by contacting us through the chat feature of your Mobile App.
- Receipts: You can get a receipt at the time you make a withdrawal at an ATM or a purchase at a point-of-sale terminal using your Dave Debit Card.
D. Preauthorized Transfers, Your Right to Stop Payment and Notices of Varying Amounts
If you authorize us or another company or person to withdraw from your Dave Spending Account or charge your Dave Card on a regular basis (such as when you sign up for “autopay” to pay a monthly bill), it is called a Preauthorized Transfer. You have the right to place a stop payment on Preauthorized Transfers, as well as get a notification when the amount of a particular withdrawal will be different from the amount of the last withdrawal.
1. Your Right to Stop Payment
If you authorize a company or person to take payments from your Dave Spending Account or charge your Dave Card on a regular basis through a Preauthorized Transfer, you can stop any of these payments by contacting us using the chat feature through the Mobile App or by sending us an email at email@example.com at least three (3) business days before the next payment is scheduled to be made.
Make sure to provide us with (1) your name, (2) your Dave Spending Account number, (3) the company or person taking the payments, and (4) the date and amount of the scheduled payment you wish to stop. If you want all future payments from that company or person stopped, be sure to tell us that as well. If you do not provide us with the correct information, such as the correct payee or the correct amount of the payment you wish to stop, we may not be able to stop the payment.
2. Our Liability if We Fail To Stop a Preauthorized Transfer
If you order us to stop one of these payments three (3) business days or more before the payment is scheduled and provide us with all information requested, and we do not do so, we will be liable for your losses or damages proximately caused by the failure. However, we will not be liable if the company or person initiating the payments changes the dollar amount of the payment or makes other changes that cause us not to recognize it as the payment you requested be stopped.
3. Notices of Varying Amounts
If these regular payments vary in amount, the person or company you are paying will tell you ten (10) days before each payment when it will be made and how much it will be. You may be given the option to only get this notice when the payment will differ by more than a certain amount from the previous payment, or when the amount will fall outside certain limits that you set.
E. Our Liability for a Failure To Complete A Transaction
If we fail to complete a transaction on time or in the correct amount when properly instructed by you in accordance with this Agreement, we will be liable for damages proximately caused by the failure or error. However, there are some exceptions. We are not liable, for instance:
- If the Available Balance in your Dave Spending Account is not sufficient to complete the transaction through no fault of ours.
- If the ATM you use does not have enough cash.
- 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 Dave Spending Account is closed or inactive.
- Your Dave Card has been frozen, revoked, canceled or suspended.
There may be additional exceptions stated in our or Dave’s agreements with you or permitted by law.
F. Your Liability for Unauthorized EFTs
Contact us immediately if you believe that an unauthorized EFT has occurred or may occur concerning your Dave Spending Account, or if your Dave Card, PIN or your Mobile App login credentials have been lost, stolen or compromised. 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 Dave Spending 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 the loss or theft of your Dave Card, PIN or your Mobile App login credentials.
For unauthorized EFTs involving your Dave Card, you will not be held responsible for unauthorized transactions if you have used reasonable care in protecting your Dave Card, PIN and card number from loss or theft and you promptly report the loss or theft to us when you discover it. For all other unauthorized EFTs and where Mastercard’s Zero Liability protection does not apply, your liability will be as follows if you notify us of the loss:
- If you tell us within two (2) business days after learning of the loss, theft or compromise of your Dave Card, PIN or your Mobile App login credentials, you can lose no more than $50.
- If you do NOT tell us within two (2) business days and we can prove that we could have prevented the loss had you contacted us, you could lose as much as $500.00.
- If your statement shows EFTs that you did not make and you do NOT contact us within sixty (60) days after the statement was made available to you, you may not get back any money lost after the sixty (60) days if we can prove that your contacting us would have prevent those losses.
We can extend these time periods if extenuating circumstances (such as a long trip or hospital stay) kept you from notifying us.
G. In Case of Errors or Questions About Your EFTs
Contact Galileo Processing at 1-844-857-3283 or email at firstname.lastname@example.org as soon as you can if you think your statement or receipt is wrong or if you need more information about a transfer listed on a statement or receipt. 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:
- Tell us your name and Dave Spending Account number.
- 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 ten (10) business days after we hear from you and will tell you the results and correct any error promptly. If we need more time, we may take up to forty-five (45) days—or ninety (90) days for Dave Spending Accounts open less than thirty (30) days, foreign-initiated transactions or point-of-sale Dave Debit Card transactions—to investigate your complaint or question. If we decide to do this, we will credit your Dave Spending Account within ten (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 ten (10) business days, we may not credit your account. For Dave Spending Accounts open less than thirty (30) days, we may take up to twenty (20) business days to credit your Dave Spending Account for the amount you think is in error.
We will tell you the results within three (3) business days after completing our investigation. If we decide that there was no error, we will send you a written explanation by email. You may ask for copies of the documents that we used in our investigation.
VII. Other Legal Terms and Conditions
A. No Assignments
Your Dave Spending Account and 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
i. Introduction. By accepting the terms of this Agreement or opening the Dave Spending Account with us, you agree to participate in the Bank deposit custodial program, as further described in this Section VII(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 Dave Spending Account. If you have any questions about any provisions of this provision, please contact us at 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 Dave Spending Account and may be deposited by Bank, as your agent and custodian, into Sub-Deposit Accounts at one or more Program Banks via your Dave Spending 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 Dave Spending 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 Dave Spending 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 Dave Spending 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 Dave Spending 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 “Dave Spending Account” may also collectively include Sub-Deposit Accounts corresponding to such Dave Spending 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 Dave Spending 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 Dave Spending 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 Dave Spending 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 Dave Spending 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 Dave Spending 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 Dave Spending 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 Dave Spending Account and may, in our discretion and in accordance with law, close your Dave Spending 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 Dave Spending 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 Dave Spending 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 Dave Spending 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 Dave Spending Account is an interest-bearing account, and you will accrue interest in accordance with the terms of the subsection titled “Dave Spending Account Basics” of this Agreement. Interest will be posted to your Dave Spending 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 Dave Spending 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 Dave Spending Account that were deposited with Bank and those transferred to the Sub-Deposit Account from your Dave Spending Account.
j. Information About Your Dave Spending Accounts. Although there are two or more accounts associated with your funds (the Dave Spending Account and the Sub-Deposit Account), your Dave Spending Account and Sub-Deposit Account is treated as a single account for accruing interest in accordance with the subsection titled “Dave Spending Account Basics” 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 Dave Spending 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 Dave Spending 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 Dave Spending 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 guarantee 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 17th 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 Dave Spending Account or, at our sole discretion, terminate your Dave Spending Account and return your funds in accordance with applicable laws and regulations.
C. Legal Processes and Claims Affecting Your Dave Spending Account
If we receive a levy, attachment, or other legal process against you (collectively, “Legal Process”), we may refuse to permit withdrawals or transfers from your Dave Spending 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 Dave Spending Account. If we receive a claim against the funds in your Dave Spending Account, or if we know of or believe that there is a dispute as to the ownership or control of funds in your Dave Spending Account, we may, in our discretion: (1) place a hold on your Dave Spending Account and refuse to pay out any funds until we are satisfied that the dispute is settled; (2) close your Dave Spending Account and send the balance to the named account holder; (3) require a court order to act; or (4) take any other action we feel is necessary to protect us. We will not be liable to you for taking any such action.
D. 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 EVOLVE. 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 OR DAVE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES 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 PROVIDED TO YOU BY DAVE NOT AS OUR 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.
ALL BANK SERVICES AND DAVE SPENDING ACCOUNT OR DAVE CARD FEATURES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THE BANK’S SERVICES OR DAVE BANK ACCOUNT OR DAVE CARD FEATURES WILL MEET YOUR REQUIREMENTS, BE CONTINUOUS, UNINTERRUPTED, SECURE, TIMELY, OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED.
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 for 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 (1) the matters set forth herein; (2) our taking any action or not taking any action that we are entitled to take pursuant to this Agreement; (3) any action or omission by you; or (4) our action or inaction in reliance upon oral, written or electronic instructions or information from you.
F. 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 you Dave Spending 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 Dave Spending 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 Dave Spending 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 Dave Spending Account for our losses without prior notice to you.
G. Changes in Terms and Additional Services
We may change this Agreement, or any fees and features of your Dave Spending Account or Dave Debit Card, at any time by posting an amended Agreement on Dave’s website, Dave.com, or otherwise providing you such 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 email or postal 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.
H. No Waiver of Rights
We may waive 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.
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.
J. Governing Law, Forum and Time Limits
All actions relating to your Dave Spending Account and this Agreement will be governed by the laws and regulations of the United States and the State of Tennessee where your Dave Spending Account will be opened, 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 two (2) years 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.
K. 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 VII(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 VII(B) for additional information.
L. 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 Dave Spending 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 Dave Spending Account owner and all persons or entities approved to have, approved to use and/or given access to a Dave Spending Account. The term “Dave Spending Account,” for purposes of arbitration, includes the Sub-Deposit Account and any updated or substitute Dave Spending 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 anew 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 email@example.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: firstname.lastname@example.org. 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 DAVE SPENDING 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 Dave Spending 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.