Please read this Dave Goals Deposit 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 (“Goals Account” or “Account”) made available to eligible consumers by Evolve Bank & Trust (“Evolve” or “Bank”), member of the Federal Deposit Insurance Corporation (“FDIC”), and serviced by Dave Operating LLC, a service provider to Evolve (“Dave”). When you see the words “we,” “us,” or “our” in this Agreement, it refers to Evolve, as well as any of its affiliates, successors, assignees, agents, or service providers. When you see the words “you” or “your,” it refers to you, the owner of Goals Account, and your personal representatives, executors, administrators, and successors.

PLEASE BE AWARE THAT SECTION V OF THIS AGREEMENT CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND EVOLVE. AMONG OTHER THINGS, SECTION V INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING AND FINAL ARBITRATION.  SECTION V ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER.  PLEASE READ SECTION V CAREFULLY.

UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN 60 DAYS IN ACCORDANCE WITH SECTION V(B) BELOW: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US THROUGH BINDING, FINAL ARBITRATION, WITH LIMITED EXCEPTIONS, AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR OTHER REPRESENTATIVE PROCEEDING OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL. 

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

By opening or continuing to hold a Goals Account with us, you agree to be bound by this Agreement.

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

I. Dave Goals Account Disclosures

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

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

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

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

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

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

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

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

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

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

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

II. Dave Goals Account Basics

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

A. Dave Goals Account Eligibility

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

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

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

B. Titling and Ownership

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

C. How To Open a Goals Account

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

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

D. No Minimum Deposit Balance

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

E. Death or Incapacitation

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

F. Our Relationship With You

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

G. Confidentiality and Our Privacy Policy

Your privacy is very important to us. Under this Agreement, we will generally only disclose information to third parties about your Goals Account or the transactions you make:

• To verify your identity and determine if we should open a Goals Account for you using services provided to us by third parties.
• Where it is necessary for completing a transaction.
• To verify the existence and condition of your Goals Account for a third party, such as a credit bureau or merchant.
• To comply with government agency or court orders.
• As disclosed in Evolve’s privacy policy.
• If you give us your written permission to share your information.

Please refer to Evolve’s Privacy Policy at https://www.dave.com/evolve-privacy for more information about our commitment to you, your privacy rights, and who we share data and information with.

H. Our Business Days 

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

I. How To Contact Us

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

You may also call us at 1-844-857-3283 or write us at Evolve ℅ Dave 1265 S Cochran Ave, Los Angeles, CA 90019 to (1) report unauthorized activity on your Goals Account or (2) notify us of an error involving a transaction on your Goals Account.

J. Cell Phone Communications

By providing us with the number for your 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. 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 with us 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 Goals Account may be offered by third parties (“Third-Party Services”) and are not operated or managed by us. 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 Goals Account or before you use them for the first time, you will be provided with, and must agree to, separate terms, conditions, disclosures, and/or privacy policies specific to those Third-Party Services.

III. Your Dave Goals Account Responsibilities

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

A. Notify Us If Your Information Changes

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

B. Keep Track of Your Transactions and Available Balance

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

C. Prohibited Use

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

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

D. Protect Your Goals Account Information

It is very important that you protect your Goals Account to prevent unauthorized transactions and fraud. Keep your Goals Account number and statements 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 your login credentials or passwords with anyone under any circumstances.

If your Goals Account number, 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 the section titled Your Liability for Unauthorized EFTs for information and applicable deadlines for notifying us of losses or theft.

IV. General Rules Governing Your Dave Goals Account

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

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

A. Making Deposits Into Goals Account

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

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

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

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

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

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

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

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

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

Deposits may only be made by Electronic Fund Transfer, Automated Clearing House (“ACH”) transfers from a linked bank account, Google Pay or Apple Pay transfers, or debit card transfers.

Our policy is to make funds from your cash and check deposits available to you on the first business day after the day we receive your deposit. Electronic direct deposits will be available on the day we receive the deposit. Once the funds are available, you can withdraw them in cash and we will use them to pay checks that you have written.

For determining the availability of your deposits, every day is a business day, except Saturdays, Sundays, and federal holidays. If you make a deposit before 3:00PM Pacific Time on a business day that we are open, we will consider that day to be the day of your deposit. However, if you make a deposit after 3:00PM Pacific Time or on a day we are not open, we will consider that the deposit was made on the next business day we are open.

Deposits made from a linked bank account will be available on the business day we received your deposit. Keep in mind that it may take several days for us to receive transfers of funds from a linked bank account. Deposits made from a Dave ExtraCash Account or Dave Checking Account will be available on the business day we receive the deposit regardless of the time of day the deposit is made.

C. Problems that Could Occur With Deposits

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

D. Withdrawals From Your Goals Account

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

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

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

E. Transfers To or From Linked Bank Accounts

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

F. No Illegal Activity, Internet Gambling, and Right to Refuse Transactions

You agree not to use your Goals Account for any illegal purposes. You may not use your Goals Account for internet gambling, regardless of whether it is legal or illegal, except for certain limited gambling options that are made available to you, at our discretion, through the Mobile App. We may deny any transaction or refuse to accept any deposit that we believe is related to illegal activity, online gambling, violates this Agreement, or for any other reason at our discretion. Violations may result in permanent account closure in our sole discretion

G. How We Post Transactions To Your Goals Account and Determine Your Available Balance

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

• Credit and debit – A credit increases your balance, and a debit decreases your balance.
• Post or posted – Transactions that are paid from or deposited to your Goals Account. Posted transactions will either increase or decrease both your Available Balance and your ledger balance.
• Pending – Transactions that we receive notice of and are scheduled to post to your Goals Account. Pending transactions affect your Available Balance, but not your ledger balance.

1. Posting Order

• We receive transactions throughout the day and post them to your Goals Account in real time. First, we start with your ledger balance, subtract any holds from your balance and make any adjustments from prior transactions. Next, we add available deposits and credits to your balance. Fees are posted in real time.

2. Determining Your Available Balance

To determine your Available Balance, we start with your ledger balance at the beginning of the business day, add any pending credits or deposits that we make available to you, and subtract any card authorizations and pending debits. All transactions are debited or credited in the order received. You may check your Available Balance at any time through the Mobile App. Keep in mind that your Available Balance may not reflect every transaction you have initiated or previously authorized. For example, your Available Balance may not include transactions you have authorized that we have not received.

H. Statements

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

I. Overdrafts and Negative Balances

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

J. Closing Your Goals Account and Account Suspensions

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

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

K. Dormancy, Inactivity, Inactivity Fee, and Unclaimed Property

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

We may also place your Goals Account in inactive status if you have not had any transactions for at least six (6) months. If your Goals Account becomes inactive, you may not receive statements or be able to conduct certain transactions. The inactive Goals Account must be reactivated. Contact Dave by email at support@dave.com to reactivate your Goals Account.

L. Fees and Fee Schedule

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

IV. Electronic Fund Transfers

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

A. Types of EFTs Supported by Your Goals Account

Your Goals Account allows the following types of EFTs:

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

B. Limitations on EFTs

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

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

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

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

D. Our Liability for a Failure To Complete A Transaction

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

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

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

E. Your Liability for Unauthorized EFTs

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

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

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

F. In Case of Errors or Questions About Your EFTs

Contact us at 1-844-857-3283, write us at Evolve ℅ Dave 1265 S Cochran Ave, Los Angeles, CA 90019 as soon as you can if you think your statement is wrong or if you need more information about a transfer listed on a statement. We must hear from you no later than sixty (60) days after we sent the FIRST statement on which the problem or error appeared. You must provide us with the following information:

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

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

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

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

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

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

V. Arbitration Agreement

THIS ARBITRATION  AGREEMENT SECTION (“ARBITRATION AGREEMENT”) IMPACTS HOW LEGAL DISPUTES BETWEEN YOU AND US ARE RESOLVED. PLEASE READ THIS ARBITRATION AGREEMENT CAREFULLY.  If a dispute (defined in Section V(A) below) is subject to arbitration under this Arbitration Agreement, 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 we would in court; or (3) participate in a class action in court, any other representative proceeding, or class-wide arbitration. Arbitration procedures are simpler and designed to be more efficient than those applicable in court.

A.  Applicability of Arbitration Agreement

If there is a Dispute (defined below) that arises between you and us or you and Dave, and we are not able to resolve the Dispute informally subject to the Informal Dispute Resolution process described in Section V(C) below, you and we agree that, upon demand by either you or us, the Dispute will be resolved through binding arbitration as set forth in this Section V, unless you opt out of arbitration as provided below, except that: you and us may each assert claims or seek relief in small claims court if such claims qualify and remain in small claims court. A “Dispute”, as used in this Arbitration Agreement, is any disagreement, controversy, or claim between you and us and/or you and Dave, arising from or relating in any way to the Account, the Card, your access to or use of the Account and/or Card, or this Agreement and any prior versions of this Agreement (each, a “Dispute”). The term “Dispute” is to be given the broadest possible meaning permitted by law and includes, by way of example and without limitation, any disagreement relating in any way to your Account or Card, including any updated or substituted account(s) or Card(s) or joint accountholders or cardholders on your Account or Card; services offered in connection with your Account, Card, or otherwise pursuant to this Agreement; your use of any of our banking products or services related to your Account or Card or this Agreement; any means you may use to access your Accounts(s);  any advertisements, promotions, or oral or written statements related to the Account or Card; the benefits and services related to the Account or Card; or your approval for, establishment of, or enrollment in an Account or Card. Disputes also include any disagreements about the meaning, application, or enforceability of this Arbitration Agreement. Disputes will include disputes regarding known or unknown claims that were not noticed prior to you first becoming subject to this Agreement, but that involve facts occurring before the existence of this or any prior versions of this Agreement, as well as claims that may arise after the termination of this Agreement. As solely used in this Arbitration Agreement, “we” or “us” shall include Evolve, its affiliates, and their successors, employees, directors, officers, and agents. In addition, “we” or “us” shall include Dave, any third party, their respective subsidiaries, affiliates, licensees, predecessors, successors, and assigns using or providing any product, service or benefit in connection with this Agreement or any Account or Card 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 Dispute asserted by you. The terms “you” or “yours” shall mean each Account owner or cardholder and all persons or entities approved to have, approved to use, and/or given access to an Account or Card, including but not limited to all persons or entities contractually obligated under this Agreement and all joint accountholder(s) and any additional cardholders. The term "Account" for purposes of arbitration includes any updated or substituted account for you related to the Account or any other account contemplated by this Agreement.

B. 60-Day Right to Opt-Out of Arbitration Agreement 

You have the right to opt out of this Arbitration Agreement by sending a written notice of your decision to opt out to support@dave.com (“Opt-Out Notice”), within sixty (60) days after first becoming subject to this Arbitration Agreement. Your Opt-Out Notice must clearly state that you want to opt out of this Arbitration Agreement, identifying the Arbitration Agreement by date; provide your name and address, and the email address and the phone number you used to set up your Account; and be electronically signed by you. No other methods can be used to opt out of this Arbitration Agreement. Any Opt-Out Notice will be effective only if you send it yourself, on an individual basis, and opt out notices from any third-party purporting to act on your behalf will have no effect on your or our rights. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any arbitration agreements that you may currently have with us, including any previous versions of this Arbitration Agreement to which you agreed and did not timely opt out, which will remain in effect, and has no effect on any arbitration agreements with us you may enter in the future.

C.  Informal Dispute Resolution

If a Dispute arises between you and us, Evolve is committed to working with you to reach a prompt, low‐cost, and mutually beneficial resolution. You and we agree to participate in good faith informal efforts to resolve Disputes before starting an arbitration or initiating an action in small claims court (“Informal Dispute Resolution”). You and Evolve agree that, as part of these efforts, either party has the option to ask the other to meet and confer telephonically (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you must also personally participate.

To initiate Informal Dispute Resolution, a party must give notice in writing to the other party (“Notice”). Such Notice to Evolve should be sent by email to support@dave.com. The Notice must include: (1) your name, telephone number, postal address, and email address associated with your account (if you have one); (2) the name, telephone number, postal address and email address of your counsel, if any; and (3) a description of the Dispute. Evolve will send Notice, including a description of the Dispute, to your email address or postal address on file.  It is your responsibility to ensure your email and postal address are correct and remain up to date.

The Informal Dispute Resolution process lasts forty-five (45) days and is a mandatory precondition to commencing arbitration. During this period, either party has the option to ask the other to participate in an Informal Dispute Resolution Conference as part of a good faith effort to resolve the Dispute. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms or organizations represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. 

The statute of limitations and any filing deadlines shall be tolled while the parties engage in Informal Dispute Resolution.

D.  Waiver of Jury Trial

YOU AND EVOLVE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Evolve are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section V(A) entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

E. Waiver of Class and Other Non-Individualized Relief

EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim.  Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section V(J) entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a final decision, not subject to any further appeal or recourse, determines that the limitations of this Section, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Evolve agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts where there is jurisdiction

over the parties, and all other claims and requested relief will be decided in arbitration under this Arbitration Agreement. In such a case, the parties will request that the court stay the severed claim(s) or request(s) for relief until the arbitration is concluded. In no event will a request for public injunctive relief be arbitrated, and in no event does this Section authorize class arbitration. All other Disputes shall be arbitrated or litigated in small claims court. This Section does not prevent you or Evolve from participating in a class-wide or mass settlement of claims.

F. Arbitration Procedures, Rules, and Forum

The Agreement evidences a transaction involving interstate commerce, and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement, including the procedures governing Batch Arbitration, and any arbitration. If Informal Dispute Resolution does not resolve satisfactorily within forty-five (45) days after receipt of a Notice, you and Evolve agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitrator shall apply substantive law consistent with the Federal Arbitration Act and as specified in this Agreement.

The arbitration will be administered by the National Arbitration & Mediation ("NAM”) in accordance with the NAM Comprehensive Dispute Resolution Rules and Procedure (the “NAM Comprehensive Rules”) in effect at the time of arbitration, except as supplemented, where applicable, by the NAM Mass Filing Supplemental Dispute Resolution Rules and Procedures (the “NAM Mass Filing Rules”; together with the NAM Comprehensive Rules, the “NAM Rules”), and as modified by this Arbitration Agreement. The NAM Rules are currently available at https://www.namadr.com/resources/rules-fees-forms/.

A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Demand”). The Demand must include: (1) the name, telephone number, postal address, and email address of the party to this Agreement seeking arbitration, as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) a statement certifying that the requesting party or its counsel will pay any necessary filing fees in connection with such arbitration, which in the case of a consumer will be no more than $215.00, or as currently set by the applicable NAM fee schedules (the “Fee Schedules”). Any Demand you send to Evolve should be sent by email to support@dave.com. Evolve will provide the Demand to your email address on file. 

If the party requesting arbitration is represented by counsel, the Demand shall also include counsel’s name, telephone number, postal address, and email address. Such counsel must also sign the Demand. By signing the Demand, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that, consistent with the standards set forth in Federal Rule of Civil Procedure 11(b): (1) the Demand is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery (“Counsel’s Certification”).  

If you file separate Demands against Evolve and Dave that involve the same or substantially similar claims and are of a substantially similar nature, you agree that those Demands will be consolidated into a single arbitration proceeding, with a single set of filing and administrative fees.

Unless you and Evolve otherwise agree, or the Batch Arbitration process discussed in Section V(J) below is triggered, you and we agree that the arbitration, including any in-person arbitration hearing, will be conducted in the county where you reside. Subject to the NAM Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of arbitration. If NAM is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any NAM fees and costs will be solely as set forth in the NAM Fee Schedules.  

You and Evolve agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential. 

You and Evolve agree that at least fourteen (14) days before the date set for any arbitration hearing, any party may serve an offer in writing upon the other party to allow judgment on specified terms. If the offer made by one party is not accepted by the other party, and the other party fails to obtain a more favorable award, the other party shall not recover any post-offer costs to which they otherwise would be entitled and shall pay the offering party’s costs from the time of the offer.

G. Arbitrator

The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from NAM's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Demand, then NAM will appoint the arbitrator in accordance with NAM Rules, provided that if the Batch Arbitration process under Section V(J) below is triggered, NAM, without soliciting input or feedback from any party, will appoint the arbitrator for each batch. If any claimant objects to the arbitrator NAM appoints for their batch, they may raise this objection with NAM.

H. Authority of Arbitrator

The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes regarding the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except that all Disputes regarding the Section entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the Section entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such Section entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Unsatisfied judgments on the arbitration award may be entered in any court having jurisdiction.

I. Attorneys’ Fees and Costs

The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Demand was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). To the extent, following a presentation on the merits, on its own motion or a party’s, and after affording a reasonable opportunity to respond, an arbitrator determines that a party who commenced arbitration did not bring its claim(s) consistent with Counsel’s Certification and the standards set forth in Federal Rule of Civil Procedure 11(b), the parties agree that the arbitrator shall, as part of its award, impose sanctions by ordering that the initiating party reimburse the responding party for all arbitration filing and administrative fees and arbitrator costs the responding party incurred under the Fee Schedules.

J. Batch Arbitration

To increase the efficiency of administration and resolution of arbitrations, you and Evolve agree that in the event that there are twenty-five (25) or more individual Demands of a substantially similar nature filed against Evolve by or with the assistance of the same law firm, group of law firms, or organizations (“Claimants’ Counsel”), within a reasonably proximate period of time, for example, a ninety (90) day period, NAM shall (1) administer the arbitration demands in batches of 100 Demands per batch (or, if between twenty-five (25) and ninety-nine (99) individual Demands are filed, a single batch of all those Demands, and, to the extent there are fewer than 100 Demands remaining after the batching described above, a final batch consisting of the remaining Demands); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each individual Demand within each batch on a consolidated basis with one set of filing and administrative fees due per batch, one procedural calendar per batch, and one hearing (if any) per batch in a place to be determined by the arbitrator (“Batch Arbitration”). NAM shall administer all batches concurrently, to the extent possible.

All parties agree that Demands are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issue(s) and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise NAM, and NAM shall appoint a sole standing Procedural Arbitrator or, should the circumstances so require, an Emergency Arbitrator, according to the NAM Rules, to determine the applicability of the Batch Arbitration process (the Procedural Arbitrator or Emergency Arbitrator, the “Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Evolve.

You and Evolve agree to cooperate in good faith with NAM to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Demands, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.

This Batch Arbitration provision shall in no way be interpreted as authorizing or creating a class, collective, and/or representative arbitration or action of any kind, except as expressly set forth in this provision, and nothing about the Batch Arbitration process will preclude any party from participating in any arbitration administered according to that process.

K. Continuation and Severability of this Arbitration Agreement

This Arbitration Agreement shall survive termination of your ExtraCash Account, Card, any voluntary payment of any debt owed to us and paid in full by you, any legal proceeding by us to collect a debt owed by you, and/or any bankruptcy by you or us. Except as provided in Section V(E) entitled “Waiver of Class or Other Non-Individualized Relief,” if any portion or portions of this Arbitration Agreement (other than Section V(J)) are found under the law to be invalid or unenforceable, then such specific portion or portions shall be of no force and effect and shall be severed, and the remaining portions of this Arbitration Agreement, shall continue in full force and effect.  However, if Section V(J) of this Arbitration Agreement, entitled “Batch Arbitration,” or the entirety of Section V(E) of this Arbitration Agreement, entitled “Waiver of Class or Other Non-Individualized Relief,” is found under the law to be invalid or unenforceable then, in either case, the entire Arbitration Agreement shall be void, and the parties agree that all Disputes will be heard in the state or federal courts located in Shelby County, Tennessee. You further agree that, except where prohibited by law, any Dispute between you and Evolve as detailed in this Arbitration Agreement must be initiated within two (2) years after the cause of action accrues under federal or Tennessee law or, if another agreement you have with us provides for a shorter period of time, then within that shorter period of time, which shall govern; otherwise, such cause of action will be forever time barred.

VI. Other Legal Terms and Conditions

A. No Assignments 

Your Goals 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. Deposit Account Ownership

You hereby agree to appoint Dave as your authorized agent with respect to managing, administering, and maintaining your funds, including but not limited to facilitating deposits, withdrawals, and funds transfers as instructed by you or in accordance with your agreements with Dave.

You acknowledge and agree that your funds may be held on a pooled basis. For the avoidance of doubt, all such funds are your property, and not that of Dave. Dave holds no ownership interest in the funds deposited in your Goals Account.

C. Insurance Coverage

The FDIC insures deposits according to the ownership category in which the funds are insured. Not all accounts may be insured. Unless otherwise stated by us or the FDIC, the Goals Account is insured by the FDIC up to the standard maximum deposit insurance amount per depositor, per FDIC-insured bank, and per ownership category (the “Standard Insurance Amount” or “SIA”). 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.

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

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

E. Our Right of Set-Off and Security Interest

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

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

F. Limitation of Liability and Disclaimer of Warranty

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

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

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

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

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

G. Changes in Terms and Additional Services

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

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

H. Indemnification

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

I. No Waiver of Rights

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

J. Severability

Subject to Section V(K) above, in the event that any court or tribunal of competent jurisdiction determines that any provision(s) or portion(s) of any provision(s) of this Agreement is illegal, invalid or unenforceable, that specific provision or part of that provision, shall be of no force and effect and shall be severed, and the remainder of this Agreement shall not be affected and shall continue in full force and effect. To the extent permitted by law, the parties waive any provision(s) or portion(s) of any provision(s) of law which prohibit or render unenforceable any provision(s) or portions of any provision(s) of this Agreement, and to the extent that such waiver is not permitted by law, you and us agree that such provision(s) or portion(s) of any provision(s) will be interpreted as modified to the minimum extent necessary to render the provision(s) or portion(s) of any provision(s) enforceable.

K. Governing Law, Forum and Time Limits

The Goals Account is opened at the Tennessee branch office of Evolve. Accordingly, your Goals Account and this will be governed by the laws and regulations of the United States and the State of Tennessee, except that the Arbitration Agreement in Section V is governed by the Federal Arbitration Act. You agree that any dispute arising under this Agreement or relating in any way to your relationship with us that is not arbitrated in accordance with Section V above 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 and we agree that you and we must commence any lawsuit or arbitration against the other within two(2) years after the cause of action accrues unless federal or Tennessee law, or another agreement you have with us, provides for a shorter period of time, in which case, that shorter period of time shall govern; otherwise, such cause of action is permanently barred. 

L. Survival

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