Dave ExtraCash Account Deposit Agreement and Disclosures
Last Updated October 28, 2024
Please read this ExtraCash 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 non-interest bearing demand deposit account (“ExtraCash Account”) and made available to eligible consumers by Evolve Bank & Trust (“Evolve”), member of the Federal Deposit Insurance Corporation (“FDIC”), in partnership with Dave Operating LLC (“Dave”), the program partner and financial technology company responsible for managing the ExtraCash Account. All banking services described in this Agreement are provided by Evolve.
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 ExtraCash 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 ExtraCash 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 the ExtraCash 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 an 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 ExtraCash 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(K) OF THIS AGREEMENT, UNLESS YOU OPT-OUT
I. ExtraCash Account Basics
A. What Is An ExtraCash Account?
The ExtraCash Account is a non-interest-bearing demand deposit account used to hold your deposits and make payments and transfers between accounts you may have at other banks. The ExtraCash Account is intended to allow you to establish a cash reserve to help you cover emergencies and other unexpected expenses.
For certain ExtraCash Account holders, we may approve the payment of items presented against your ExtraCash Account even if you do not have sufficient funds in your ExtraCash Account for the transfer, causing you to overdraw your ExtraCash Account and resulting in a negative balance up to the Advance Limit. For purposes of this Agreement, an item includes electronic fund transfers you request. These overdrafts are also referred to as Advances in this agreement.
B. ExtraCash Account Eligibility
The ExtraCash 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 military addresses (APO or FPO), and have a valid Social Security Number or Tax Identification Number. The ExtraCash 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, or be used to deposit the proceeds of business-purpose credit such as Paycheck Protection Program (“PPP”) loan funds. The ExtraCash Account is not intended for use as a student loan or to otherwise finance education.
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 ExtraCash 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 an ExtraCash 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 refusal of an ExtraCash Account relationship.
C. Titling And Ownership Of ExtraCash Accounts
The ExtraCash Account may only be owned in the name of one person who may make deposits and transfer or withdraw funds. The ExtraCash 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. Mobile
Your ExtraCash Account can be viewed and is accessible through Dave’s mobile application (“Mobile App”). The Mobile App also provides you various services and features separate from your ExtraCash Account designed to help you manage your finances. All of these additional services and features are subject to Dave’s Terms of Use and Dave’s Privacy Policy available at https://www.dave.com/terms. Please review Dave’s Terms of Use carefully because by using the Mobile App, you agree to be bound by them and Dave’s Privacy Policy. These 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 the services or features.
E. How To Open An ExtraCash Account
You may apply for an ExtraCash Account by submitting a request through the Mobile App and providing all requested information.
Important information about procedures for opening a new ExtraCash 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 an ExtraCash Account. This means that when you open an ExtraCash 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.
F. Minimum And Maximum Balance
There is no minimum deposit required to open an ExtraCash Account and no minimum balance you need to maintain in your ExtraCash Account. You may maintain a maximum balance of up to $500. If you exceed the maximum balance at any time, we reserve the right to transfer the amount of your balance in excess of the maximum to another bank account you have with us or to a linked account.
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 ExtraCash 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 ExtraCash 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. 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 ExtraCash 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 ExtraCash Account after your death.
H. Our Relationship With You
By opening an ExtraCash Account, we are establishing an ExtraCash 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 ExtraCash Account relationship do not create a fiduciary relationship or any other special relationship between you and us.
I. 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 ExtraCash Account or the transactions you make:
- To verify your identity and determine if we should open an ExtraCash 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 ExtraCash 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.
Services offered by Dave in any capacity other than a service provider to Evolve in connection with the ExtraCash Account, are also subject to Dave’s Privacy Policy https://www.dave.com/privacy. Please carefully review Dave’s Privacy Policy for more information about Dave’s commitment to you, your privacy rights and who Dave shares data and information with.
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 with Dave 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 ExtraCash 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 ExtraCash 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.
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 ExtraCash 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 6:00 PM Pacific Time. You may also call us at 1-844-857-3283; live agent support is available Monday – Friday 4am – 10pm Pacific Standard Time and Saturday – Sunday 5am – 5pm 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 Dave Account, or (2) notify us of an error involving a transaction on your Dave Account.
II. Your ExtraCash Account Responsibilities
We strive to keep your ExtraCash Account secure and provide you with tools and services to help you manage your ExtraCash Account. However, there are certain things you should do to protect your ExtraCash 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 ExtraCash 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 ExtraCash 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 completed.
You are also responsible for reviewing your ExtraCash 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 ExtraCash Account Information
It is very important that you protect your ExtraCash Account to prevent unauthorized transactions and fraud. Keep your ExtraCash 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.
If your ExtraCash 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 Section V(F) for information and applicable deadlines for notifying us of losses or theft.
III. General Rules Governing Your ExtraCash 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.
A. Making Deposits Into Your ExtraCash Account
You may make deposits into your ExtraCash Account using any of these methods described below. We do not charge you any fees for making deposits.
Deposit Method | Limitations for ExtraCash Account |
---|---|
ACH transfers to your ExtraCash Account from a linked bank account using the Mobile App1 | No Maximum Frequency $500 Max Balance |
AIntrabank transfers to your ExtraCash Account from an ExtraCash Account or Dave Goals Account using the Mobile App2 | No Maximum Frequency $500 Max Balance |
1The recipient’s name on any ACH transfer must match the name on the ExtraCash Account or the deposit may be returned to the originator. 2You may transfer funds between your ExtraCash Account and another bank account. The linked bank account must be located in the United States. |
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 ExtraCash 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 ExtraCash 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 ExtraCash 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 III(B).
B. Our Funds Availability Policy – Your Ability To Withdraw Funds
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 Checking Account or Goals 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 ExtraCash 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 ExtraCash Account at the time, your ExtraCash Account may become overdrawn. Please refer to Section III(I) concerning overdrafts for more information.
D. Withdrawals From Your ExtraCash Account
You may withdraw funds up to the amount of your Available Balance in your ExtraCash Account by Electronic Fund Transfer using any of the following methods. Special limitations apply to withdrawals for New ExtraCash Accounts.
Withdrawal Method | Limitations for ExtraCash Accounts |
---|---|
ACH transfers from your ExtraCash Account to a linked bank account using the Mobile App* | Maximum Frequency: 5 per month Maximum Amount: $500 per transfer |
Intrabank transfers to your ExtraCash Account or Dave Goals Account using the Mobile App | No limits |
Transfer to your linked bank account using the debit card associated with your linked bank account (“Push-to-Debit”) | $500 |
Total Withdrawal Limit–Combined | N/A |
* You may transfer funds between your ExtraCash Account and another bank account. The linked bank account must be located in the United States.
For security reasons, your ExtraCash Account may be subject to additional, security-related limitations. See Section VI(B) below regarding Limitations on EFTs for further details.
You cannot withdraw funds by check, and we do not permit you to create checks drawn on your ExtraCash Account.
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 ExtraCash Account in order to transfer funds between the linked bank account and your ExtraCash 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 ExtraCash Account for any illegal purposes or, 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 ExtraCash Account And Determine Your Available Balance
To understand how we post transactions to your ExtraCash 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 ExtraCash Account at any given time that is available for you to use. Your ledger balance is the balance in your ExtraCash Account at the beginning of the day after we have posted all transactions to your ExtraCash Account from the day before. 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 ExtraCash 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 ExtraCash 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 ExtraCash Account at the end of each business day. We generally group transactions into categories, and then post all transactions within a group to your ExtraCash Account before posting transactions from the next group.
First, we start with your ledger balance at the beginning of the business day, subtract any holds from your balance and make any adjustments from prior days. Next, we add available deposits and credits to your balance. Then, we subtract each transaction group and the transactions within each group in the following order:
- All other Electronic Fund Transfers, including ACH transfers and items drawn against the account: Transactions in this group are posted in the order received by us.
- Fees: Fees are posted last to your ExtraCash Account and are posted in order from highest to lowest dollar amount.
We may change the way we group transactions together or the order in which we post transactions to your ExtraCash Account at our discretion and without notice to you. It is therefore important for you to keep track of the deposits you make and the transactions you authorize to make sure there are sufficient funds in your ExtraCash Account to cover all transactions and any applicable fees.
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 ExtraCash Account during the statement period. If there were no transactions on your ExtraCash Account, we will provide you statements at least quarterly. You will not receive paper statements.
I. “Advance” Overdrafts And ExtraCash Balance Settlement
Your ExtraCash Account comes with features that are designed to help you with emergency and other unexpected expenses, as well as to better manage your finances. These features include an overdraft service called “Advance,” and a balance top-up feature called “Balance Settlement.”
Advance is a service that allows you to draw your ExtraCash Account negative up to a specified amount (“ExtraCash Limit” or “Advance Limit”) when you have insufficient available funds to cover an electronic fund transfer, such as an ACH transfer. We further reserve the right to pay or not pay any electronic fund transfer you request using the Advance service at our discretion regardless of your Advance Limit.
1. Advances
For certain ExtraCash Account holders, we may approve electronic fund transfers that you request even if you do not have sufficient funds in your ExtraCash Account for the transfer, which will cause you to overdraw your ExtraCash Account and result in a negative balance on your ExtraCash Account up to the Advance Limit. These overdrafts are called Advances and are designed to allow you to cover emergency or other unexpected expenses and manage your overall financial health. You must:
- be 18 years of age or older;
- have an ExtraCash Account in good standing; and
- have a Dave Checking Account or a linked bank account
You may request an Advance at any time by initiating a transfer out of your ExtraCash Account in excess of your current Available Balance. If you are enrolled in Dave’s Personal Financial Management Services, you may also receive alerts from Dave concerning potential insufficient funds in your Dave Spending Account or linked bank accounts through the Mobile App, SMS messages and/or email which include a reminder that you can request an Advance.
Any negative balance in your ExtraCash Account is payable immediately upon demand, whether the negative balance was caused by your use of the Advance feature or otherwise. We reserve the right to exercise our right to set off (see Section F) if your ExtraCash Account has a negative balance for an extended period of time, and will close your ExtraCash Account if you have a negative balance for sixty (60) calendar days or more.
2. Your Advance Limit
Your Advance Limit is determined by us in our sole discretion based on, among other risk-based factors, the direct deposit and transaction history of any accounts you have with us and, if applicable, any linked bank account. Your Advance Limit may be increased or decreased at any time by us and will always represent the maximum limit you may overdraw the ExtraCash Account through an Advance. Your Advance Limit will be clearly communicated to you via the Mobile App at the time you request an electronic fund transfer that would overdraw your ExtraCash Account if paid.
3. Optional Tips
You may choose to pay a voluntary gratuity (the “tip”) when you request an Advance from your ExtraCash Account. The “tip” will be deducted from the balance in your ExtraCash Account only when you have sufficient funds in your ExtraCash Account to pay the tip. Payment of a tip is optional. Payment or non-payment of a tip will not affect your eligibility to request Advances, your Advance Limit, or our decision to pay or not pay an electronic fund transfer that will cause you to be overdrawn. Any tip that you provide will be displayed on your monthly account statements associated with your ExtraCash Account.
A portion of your tip will be donated to charity for on-time settlements only.
4. ExtraCash Balance Settlement
When you open an ExtraCash Account, you agree to enroll in the Balance Settlement feature. Balance Settlement allows us to transfer funds from your ExtraCash Account and/or linked bank accounts (“Settlement Accounts”) whenever the balance in your ExtraCash Account falls below a specified low balance threshold (“Threshold”). You will be asked to designate or confirm your Settlement Accounts at the time you open your ExtraCash Account. The default Threshold will be zero ($0) dollars. You may be given the ability to change the Threshold through the Mobile App.
5. Default Balance Settlement Transfer Rules
The default Threshold for your ExtraCash account is $0 and the Balance Settlement feature will only activate when your balance becomes negative from taking an advance or otherwise. You agree that if your ExtraCash Account becomes negative and you have not made a settlement to cover the overdraft, the Settlement feature will attempt to transfer an amount sufficient to bring your balance back to $0 from the Settlement Account into which you receive an ongoing direct deposit. We will process the transfer on the date we estimate you will receive your next direct deposit into your Settlement Account. If you do not receive an ongoing direct deposit or you do not receive a direct deposit at substantially similar intervals, the Balance Settlement feature will attempt the transfer on the first Friday following the date your ExtraCash Account becomes negative.
You agree that the Balance Settlement feature will process this transfer using the debit card associated with your Settlement Account, and that if the transfer using your debit card fails for any reason, or if you do not have a debit card on file with us, the transfer will instead be processed as an ACH transfer. If both transfer methods are unsuccessful, the Balance Settlement feature will instead attempt to transfer funds from one of your other Settlement Accounts or Dave Checking Account/Dave Spending Account.
You agree that if all attempts to transfer funds from your Settlement Accounts fail, the Balance Settlement feature will reattempt the transfer on the next date we detect that you have sufficient funds to complete the transfer in any one of your Settlement Accounts.
Although we will attempt to bring your balance back to $0 through the Balance Settlement feature, you are still responsible for ensuring that you cover any negative balance on your ExtraCash Account plus the optional tip, and any negative balance is payable upon demand and in full.
6. Customized Balance Settlement Transfer Rules
You may be given the ability to change your Threshold to an amount greater than $0 (“Custom Threshold”). If you establish a Custom Threshold and the balance in your ExtraCash Account falls below that Custom Threshold, we will attempt to transfer funds from your Settlement Accounts until your balance reaches the Custom Threshold. If you are given the ability to establish a Custom Threshold, you will also be provided with options through the Mobile App that will determine the amount and timing of the transfers we will make.
However, if your balance falls below $0, the default Balance Settlement rules described in Section III(I)(5) will apply until your balance is brought back to $0.
7. Balance Settlement Account Monitoring
In some cases, it will be possible to monitor Settlement Accounts and avoid overdraws when performing a Balance Settlement transfer. However, this is not always possible and we make no warranties that an overdraft will not occur, and are not responsible for any fees you may incur as a result.
8. Recharge
As part of your use of the ExtraCash service, you may be given the opportunity to take an additional advance 24 hours after your first advance. This service is called an Advance Recharge, and allows you to access a higher advance limit than may be available in a single advance. If available, you will be presented with a single advance amount and a recharge amount that will be available 24 hours after taking the initial advance. Through this process, we are is able to offer a total advance amount higher than if the advance was taken in one draw. You may take up to any amount of the total on either the initial advance or on the recharge. Use of recharge and accessing the full amount of the initial advance or the recharge is optional and will not affect your ability to take advances in the future. Any advance taken, either initially or as a recharge will otherwise be subject to applicable transfer fees. As always, tips are optional and your eligibility and access to advances will not be affected if you choose not to tip. The settlement process for an advance with recharge will function the same as the process with individual advances (See Sec. III(I)(5) of this agreement). You will be responsible for paying back both the initial advance and the recharge, as well as any fees and optional tips, on a date you agree on before confirming the advance.
Your Recharge amount will be available at 7:00 AM the day after you take an ExtraCash advance. If you take your advance after 2:00 AM, your Recharge amount won’t be available until the following day.
J. Closing Your ExtraCash Account And Account Suspensions
You can close your ExtraCash 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. It is important to understand that simply reducing your Available Balance to zero ($0) is not sufficient to close your ExtraCash Account. We reserve the right to refuse your request if you have a negative balance on your ExtraCash Account.
We may also suspend or close your ExtraCash account at our discretion and for any reason with or without notice and with or without a reason. This includes if we believe you are using your ExtraCash 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 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 ExtraCash Account.
Subject to federal law, if your ExtraCash 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 ExtraCash 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 ExtraCash Account is considered dormant. Your ExtraCash Account is usually considered dormant if you have not accessed your ExtraCash Account, communicated to us about your ExtraCash Account or otherwise shown an interest in your ExtraCash 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 ExtraCash 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 ExtraCash 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 ExtraCash Account, conducting transactions, contacting us about your ExtraCash Account or replying to any abandoned property notices we may provide to you.
We may also place your ExtraCash Account in an inactive status if you have not had any transaction for at least four (4) months. If your ExtraCash Account becomes inactive, you may not receive statements or be able to conduct certain transactions. Inactive ExtraCash Accounts must be reactivated. Contact Dave by email at support@dave.com to reactivate your ExtraCash Account.
L. Fees And Fee Schedule
You agree to pay all fees and charges applicable to your ExtraCash Account as disclosed to you in the Fee Schedule in the app and/or when you opened the ExtraCash Account and restated prior to taking an overdraft advance. Applicable fee(s) will be added to your advance amount and will be repayable upon settlement date (See Section III(I)). 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 ExtraCash Account allows you to withdraw funds or make deposits through electronic fund transfers (“EFTs”). EFTs are transactions that are processed by electronic means and include, among others, ACH transfers and transfers to a debit card. This Section provides you with information and important disclosures and terms about the EFTs that are permitted on your ExtraCash Account. You may also receive additional EFT services through the Mobile App that are not described in this Agreement. You will be provided separate agreements and disclosures applicable to those services before you are given access to them.
A. Types of EFTs Supported by Your ExtraCash Account
Your ExtraCash Account allows the following types of EFTs:
- ACH transfers to or from your ExtraCash Account to or from a linked bank account through the Mobile App.
- Debit card transfers to or from your ExtraCash Account using a debit card associated with a linked bank account through the Mobile App.
- Internal transfers between any deposit accounts you have with us that are managed by Dave.
B. Limitations on EFTs
There are limitations on the frequency and amount of transactions you can make to or from your ExtraCash Account. These limits are different for each type of transaction. For limits that apply to transactions that credit or deposit funds into your ExtraCash Account, please refer to Section III(A) concerning deposits. For limits that apply to transactions that debit or withdraw from your ExtraCash Account, please refer to Section III(D) concerning withdrawals.
For security reasons, your ExtraCash 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 ExtraCash 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 ExtraCash Account and your linked bank account(s). 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
You will receive information and documentation concerning any EFTs that debit or credit your ExtraCash Account in the following ways:
- Statements: We will provide you information about each transaction that debits or credits your ExtraCash 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.
D. 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 the actual 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 ExtraCash 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 have reason to believe the transaction is unauthorized or illegal.
- Your ExtraCash Account is closed or inactive.
There may be additional exceptions stated in our agreements with you or as permitted by law.
E. Your Liability for Unauthorized EFTs
Tell us AT ONCE if you believe your Mobile App login credentials 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 is the best way of keeping your possible losses down. You could lose all the money in your account. If you tell us within 2 business days after you learn of the loss or theft of your Mobile App login credentials, you can lose no more than $50 if someone used your Mobile App login credentials 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 login credentials, and we can prove we could have stopped someone from using your Mobile App login credentials without your permission if you had told us, you could lose as much as $500.
Also, if your statement shows transfers that you did not make, including those made by card, code or other means, tell us at once. If you do not tell us within 60 days after the statement was mailed to you, you may not get back any money you lost after the 60 days if we can prove that we could have stopped someone from taking the money if you had told us in time. If a good reason (such as a long trip or a hospital stay) kept you from telling us, we will extend the time periods.
F. In Case Of Errors Or Questions About Your EFTs
Contact us at 1-844-857-3283 or write us at Evolve ℅ Dave 1265 S Cochran Ave Los Angeles, CA 90019 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 ExtraCash 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 correct any error promptly. If we need more time, however, we may take up to forty-five (45) days to investigate your complaint or question. If we decide to do this, we will credit your ExtraCash 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 errors involving new accounts, point-of-sale, or foreign-initiated transactions, we may take up to ninety (90) days to investigate your complaint or question. For new accounts, we may take up to twenty (20) business days to credit your ExtraCash 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. You may ask for copies of the documents that we used in our investigation.
V. Other Legal Terms and Conditions
A. No Assignments
Your ExtraCash 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 ExtraCash Account.
C. Legal Processes And Claims Affecting Your ExtraCash Account
If we receive a levy, garnishment, attachment, tax withholding order, restraining order, subpoena, warrant, injunction, government agency request for information, search warrant, forfeiture or other similar order against you or your ExtraCash account (collectively, “Legal Process”), we may refuse to permit withdrawals or transfers to or from your ExtraCash 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 ExtraCash Account. The fees and expenses may include attorney’s fees. We may deduct these fees and expenses from your ExtraCash 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. If we receive a claim against the funds in your ExtraCash Account, or if we know of or believe that there is a dispute as to the ownership or control of funds in your ExtraCash Account, we may, in our discretion: (1) place a hold on your ExtraCash Account and refuse to pay out any funds until we are satisfied that the dispute is settled; (2) close your ExtraCash 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 OUR 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 OF THE MOBILE APP PROVIDED TO YOU BY DAVE. 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 EXTRACASH ACCOUNT 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 EXTRACASH ACCOUNT FEATURES WILL MEET YOUR REQUIREMENTS, BE CONTINUOUS, UNINTERRUPTED, SECURE, TIMELY, OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED.
E. Indemnification
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 ExtraCash 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 ExtraCash 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 ExtraCash 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 ExtraCash 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 ExtraCash Account at any time by posting an amended Agreement on Dave’s website, Dave.com, and any such amendment shall be effective upon posting. We will give you advance notice of any change where required by law. We may provide such notice to you with your statement, electronically, or by mail. Any notice we provide to you will be binding and sent to the last (postal or electronic) address in our records. We may change your address if we receive an address change notice from the U.S. Postal Service. We may change or terminate this Agreement without notice at our discretion or to comply with any appropriate federal or state law or regulation.
If we make any of our other banking services available to you in connection with your ExtraCash Account (e.g., wire transfers or check services), we may provide certain terms and conditions for those additional services to you in a separate agreement or disclosure.
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.
I. Severability
In the event that any court or tribunal of competent jurisdiction determines that any provision of this Agreement is illegal, invalid or unenforceable, the remainder of this Agreement shall not be affected. To the extent permitted by law, the parties waive any provision of law which prohibits or renders unenforceable any provisions of this Agreement, and to the extent that such waiver is not permitted by law, you and us agree that such provision will be interpreted as modified to the minimum extent necessary to render the provisions enforceable.
J. Governing Law, Forum And Time Limits
The ExtraCash Account is opened at the Tennessee branch office of Evolve. All actions relating to your ExtraCash Account and this Agreement will be governed by the laws and regulations of the United States and the State of Tennessee where your ExtraCash Account is 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. 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.
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, unless you opt out as provided below. A “claim” or “dispute”, as used in this Arbitration Provision, is any unresolved disagreement between you, us and/or Dave, arising from or relating in any way to the Account, Card, or this Agreement. The terms “claim” and “dispute” are to be given the broadest possible meaning that will be enforced and includes, by way of example and without limitation, any disagreement relating in any way to your Account or Card, or any additional account, joint accountholder, additional Cards or cardholders; services offered in connection with an Account, Card or any other services offered pursuant to this Agreement; to your use of any of our banking products or services; to any means you may use to access your Accounts(s); to any advertisements, promotions or oral or written statements related to the Account or Card; to the benefits and services related to any Account or Card; or your approval, establishment or enrollment for an Account or Card. Claims also includes 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. 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 claim 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 and any additional cardholders. The term "Account" for purposes of arbitration, includes any updated or substitute account for you related to the Account or any other account contemplated by this Agreement.
2. Binding Arbitration and Appeals
If either party elects arbitration, that claim shall be arbitrated on an individual basis. Arbitration applies whenever there is a claim between you and us. The arbitrator’s authority to resolve claims or make awards is limited to claims between you and us alone. 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. Furthermore, claims brought by you against us or by us against you may not be joined or consolidated with claims brought by or against someone other than you, unless otherwise agreed to in writing by all parties. 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. Opt-Out of Arbitration Provision
You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt out notice to support@dave.com, within 60 days of the date of your electronic acceptance of the terms of this Agreement. The opt out notice must clearly state that you are rejecting arbitration; identify the Agreement to which it applies by date; provide your name, address, and social security number; and be signed by you. You may send an opt-out notice in any manner you see fit as long as it is received at the specified address within the specified time. No other methods can be used to opt out of this Arbitration Provision. If the opt out notice is sent on your behalf by a third party, such third party must include evidence of their authority to submit the opt out notice on your behalf.
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”). For a copy of the procedures, to file a claim or for other information about this organization, contact them at 335 Madison Avenue, New York, NY 10017; website at www.adr.org.
In the event that the 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 legal@dave.com. If we initiate the arbitration, we will notify you in writing at your last known address in our file.
5. Class Action and Jury Waiver
NEITHER YOU NOR WE (I) HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR HAVE A JURY TRIAL ON THAT CLAIM, (II) SHALL BE ENTITLED TO JOIN OR CONSOLIDATE DISPUTES BY OR AGAINST OTHERS IN ANY COURT ACTION OR ARBITRATION, (III) HAVE THE RIGHT TO INCLUDE IN ANY COURT ACTION OR ARBITRATION ANY DISPUTE AS A REPRESENTATIVE OR MEMBER OF A CLASS CLAIMANTS PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION, (IV) HAVE THE RIGHT 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 ACCOUNT; OR (V) ENGAGE IN DISCOVERY EXCEPT AS PROVIDED FOR IN THE CODE OF PROCEDURES OF AAA, AS APPLICABLE (THE “CODE”). THIS IS SO WHETHER OR NOT THE CLAIM HAS BEEN ASSIGNED. NOTE THAT OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WANT TO COURT MAY NOT BE AVAILABLE IN ARBITRATION.
6. Location of Arbitration and Costs
Any 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. All other fees and costs will be allocated in accordance with the rules of the arbitration forum. 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. Arbitration Procedures
This Arbitration Provision is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-16, as it may be amended (the “FAA”). The arbitration shall be governed by the applicable Code, except that (to the extent enforceable under the FAA) this Arbitration Section shall control if it is inconsistent with the applicable Code. The arbitrator shall apply applicable substantive law consistent with the FAA and applicable statutes of limitations and shall honor claims of privilege recognized at law and, at the timely request of either party, shall provide a brief written explanation of the basis for the decision. 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 here.
8. 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.
9. Continuation and Severability of this Arbitration Provision
This Arbitration Provision 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. 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.