We may change this fee policy in the future in accordance with this Agreement with prior notice to you.
Section 7. DISCLOSURE OF CARD INFORMATION TO THIRD PARTIES. We will disclose information to Partner or third parties about your Card or the transactions you make:
• Where it is necessary for completing the transaction, administering your rewards, loyalty or promotional program or providing customer support;
• Where there has been unauthorized use of your Card;
• With your written permission;
• To utilize services of third parties and affiliate entities who assist us in providing the Card and related services;
• If you owe us money or there are legal proceedings in connection with your Card, in which case, information may be released to attorneys, accountants, collection bureaus, financial institutions, and others involved in collection, adjustment, settlement or reporting;
• To protect against potential fraud and other crimes;
• To our employees, auditors, affiliates, service providers, or attorneys as needed;
• In order to comply with government agency or court orders;
• To verify the existence and condition of your Card to a third party, such as merchant; or
• When otherwise permitted by law. We may also share information about you and your Card, based on our transactions and experiences with you, with our parent, affiliate and subsidiary companies, and with Partner and its affiliates.
Our Privacy Policy is available at
https://www.getevolved.com/privacy-policy/ Section 8. BALANCE AND ACTIVITY INFORMATION. You are responsible for keeping track of the transactions on your Card to ensure that you do not exceed your Available Balance. You can review your Available Balance and a report of transactions on your Card by accessing the unique URL used to obtain your card credentials. This information is available to you 24 hours a day, 7 days a week.
Section 9. YOUR LIABILITY FOR CARD USE. Tell us AT ONCE if you believe your Card has been lost or stolen, your PIN has been discovered or if you believe that someone has transferred or may transfer money from your Card without your permission. We will ask for your Card number and other identifying details. We may not be able to assist you if you do not have the Card number. We may not be able to assist you if you do not contact us within 60 days of the transaction. While we are happy to answer your questions about transactions, please remember that you will be considered to have authorized any transaction by anyone using your Card or Card number. We reserve the right to require an affidavit and conduct an investigation into the validity of any request.
Section 10. BANK LIABILITY. If we do not complete a transaction from your Card on time or in the correct amount according to this Agreement, we may be liable for your losses or damages. However, there are some exceptions. We will not be liable, for instance:
• If through no fault of ours, you do not have enough money on the Card to cover a transaction;
• If a merchant refuses to accept your Card;
• If the transaction would exceed your available funds;
• If the terminal or system was not working properly;
• If access to your Card has been blocked after you reported your Card lost or stolen;
• If there is a hold or your funds are subject to legal process or other encumbrance restricting their use;
• If we have reason to believe the requested transaction is unauthorized;
• If circumstances beyond our control (such as fire, flood, or computer or communication failure) prevent the transaction, despite reasonable precautions that we have taken;
• If the merchant authorizes an amount greater than the purchase amount; or
• As otherwise provided in this Agreement or by applicable law.
Section 11. SYSTEMS UNAVAILABILITY. Electronic statements may not be available when systems require maintenance or upgrades or major unforeseen events occur, such as earthquakes, fires, floods, computer failures, interruptions in telephone service, electrical outages, civil unrest or riots, war, or acts or threatened acts of terrorism or other circumstances beyond our control. We have no liability for interruptions or delays in services due to systems unavailability. From time to time Card services may be inoperative, and when this happens, you may be unable to use your Card or obtain information about your Card available balance. You agree that neither we, Partner, Visa, nor their affiliates, employees, or agents are responsible for any interruption of service.
Section 12. MISCELLANEOUS.
Admendment. We can change this Agreement at any time, and such changes will be binding on you. If required by law, we will post notice of the change on our web site prior to the effective date of the change. However, if the change is made for security purposes, we can implement it without prior notice. Your use of the Card constitutes acceptance of any amendment implemented by us. We will not apply any amendments or changes to the Arbitration Provision to any arbitration that is pending at the time of the amendment or change.
Our Closure or Suspension of the Card. We may terminate or suspend your Card at any time. Your Card remains our property. Once the Card has been terminated, you agree to discontinue using your Card. If after termination there are remaining available funds on the Card, they are our property. No closing of the Card will affect any of our rights or your obligations and responsibilities arising prior to such closing, or which by their nature or by express provision are intended to survive such closing.
Disclaimer of Liability. In providing the Card and related services to you, we disclaim any duty or responsibility other than those expressly set forth in this Agreement. We are not liable for any claims, losses or damages that arise out of your misuse of the Card. We are not liable for any claims of special, indirect or consequential damages.
Assignment. You may not transfer or assign the Card or this Agreement to any other person without our and Partner’s prior written consent. We may assign our obligations to you under this Agreement without your consent or notice to you.
Severability/No Waiver. If any provision of this Agreement is deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
Applicable Law. This Agreement is governed by applicable federal laws, rules and regulations. To the extent federal law is not applicable, the laws of the State of Tennessee govern this Agreement. In the event of any conflict between the provisions of this Agreement and any applicable law or regulation, this Agreement will be deemed modified to the extent necessary to comply with such law or regulation.
Waiver. We may waive any of the provisions or conditions of this Agreement, but any such waiver will be effective only on that occasion and will not be a continuing waiver or a waiver on any other occasion. We can delay enforcement of any of our rights under this Agreement without losing them.
Section 13. ARBITRATION PROVISION.
ARBITRATION: PLEASE READ THIS CAREFULLY. YOU AGREE THAT ANY DISPUTE WILL BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBITRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR INSTEAD OF A JUDGE OR JURY. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN COURT PROCEDURES. YOU ALSO AGREE ANY ARBITRATION WILL BE LIMITED TO THE DISPUTE BETWEEN YOU AND US AND WILL NOT BE PART OF A CLASS-WIDE OR CONSOLIDATED ARBITRATION PROCEEDING.
Agreement to Arbitrate: You and we agree that any dispute will be resolved by arbitration. This Agreement is governed by the Federal Arbitration Act (FAA), 9 USCS § 1 et seq. and the substantive law of the state of Tennessee.
Definitions: Arbitration is a means of having an independent third party resolve a dispute. A “dispute” is any controversy or claim between you and us or Partner. The term dispute is to be given its broadest possible meaning and includes, without limitation, all claims or demands (whether past, present or future, including events that occurred prior to the opening of this account or Card), based on any legal or equitable theory (tort, contract or otherwise), and regardless of the type of relief sought (i.e. money, injunctive relief or declaratory relief). A dispute includes, by way of example and without limitation, any claim based upon federal or state constitution, statute, ordinance, regulation, or common law, and any issue concerning the validity, enforceability or scope of this arbitration agreement. The term “you” includes any authorized user and also your heirs, guardian, personal representative or trustee in bankruptcy. The term “us” includes our employees, officers, directors, attorneys, affiliated companies, predecessors and assigns, as well as our marketing, servicing and collection representatives and agents.
Selection of Arbitrator. If a dispute arises, the party asserting the claim or defense must initiate arbitration, provided you or we may first try to resolve the matter informally or through customary business methods, including collection activity. The party filing arbitration may initiate and pursue the matter with the American Arbitration Association (“AAA”) or JAMS, The Resolution Experts or we may agree upon a different arbitrator described below. If you claim you have a dispute with us, but do not initiate arbitration or select an arbitrator, we may do so. You may obtain copies of the current rules of arbitration and forms and instructions for initiating arbitration by contacting them as follows:
• American Arbitration Association, 335 Madison Avenue, Floor 10, New York, NY 10017-4605 Website: www.adr.org.
• JAMS, The Resolution Experts, 1920 Main Street, Suite 300, Irvine, CA 92614, Website:
www.jamsadr.com or by phone at (949) 224-1810 or (800) 352-5267
The policies and procedures of the arbitrator will apply provided that they are consistent with this arbitration agreement. To the extent the arbitrator’s rules or procedures are different than the terms of this arbitration agreement, the terms of this arbitration agreement shall apply. If either of the arbitration firms are not available to adjudicate the matter, or if neither is convenient or acceptable to you, you and we may agree on one or more neutral arbitrators. If you and we cannot agree on arbitrator(s), an arbitrator will be appointed by a court with jurisdiction over the matter pursuant to the FAA.
Cost of Arbitration: We will pay the filing fee and any costs or fees charged by the arbitrator regardless of whether you or we initiate the arbitration. Except where otherwise provided by applicable law, each party will be responsible for its own attorneys’ fees and other expenses. Unless prohibited by law, the arbitrator may award fees, costs and reasonable attorneys’ fees to the party who substantially prevails in the arbitration.
Place of Arbitration: Unless you and we agree to a different location, the arbitration will be held in Memphis, Tennessee. The arbitrator may decide the matter based upon written submissions by the parties if permitted under the arbitration rules.
Waiver of Rights: You are waiving your right to a jury trial, to have a court decide your dispute, to participate in a class action lawsuit and to certain discovery and other procedures that are available in a lawsuit. The arbitrator has the ability to award all remedies available by statute, at law or in equity to the prevailing party. You and we agree that the arbitrator has no authority to conduct class-wide proceedings and will be restricted to resolving the individual disputes between you and us. If an arbitration firm or arbitrator fails or refuses to enforce the waiver of class-wide arbitration, then the dispute will proceed in court. The validity, effect and enforceability of this waiver of class action lawsuit and class-wide arbitration is to be determined solely by a court of competent jurisdiction and not by the arbitration firm or arbitrator. If such court refuses to enforce the class-wide arbitration waiver, then it is agreed the dispute will proceed in court rather than arbitration.
Review of Arbitration Award. The arbitrator shall apply applicable federal and Tennessee substantive law and the terms of your Agreement with us. The arbitrator shall make written findings and the arbitrator’s award may be filed with any court having jurisdiction. The arbitration award shall be supported by substantial evidence and must be consistent with your Agreement with us and applicable law or may be set aside by a court upon judicial review.
No Preclusive Effect: No arbitration award involving the parties will have any preclusive effect as to issues or claims in any dispute involving anyone who is not a party to the arbitration, nor will an arbitration award in prior disputes involving other parties have preclusive effect in an arbitration between the parties to this Arbitration Provision.
Public Injunctive Relief: If a Claim is brought seeking public injunctive relief and a court determines that the restrictions in the Class Action Waiver and/or elsewhere in this Arbitration Provision prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such Claim (and that determination becomes final after all appeals have been exhausted), the Claim for public injunctive relief will be determined in court and any individual Claims seeking monetary relief will be arbitrated. In such a case the parties will request that the court stay the Claim for public injunctive relief until the arbitration award pertaining to individual relief has been entered in court. In no event will a Claim for public injunctive relief be arbitrated.
Other Provisions: If any portion of this arbitration agreement is subsequently deemed unenforceable, the enforceability of any other provision of this arbitration agreement shall not be affected and the unenforceable term shall be amended such that it is enforceable to the maximum extent permitted by law provided that if a class action litigation or a class-wide arbitration is permitted for any reason, either party may require that the entire dispute be heard by a Judge, sitting without a jury, under applicable court rules and procedures. This arbitration provision shall survive: (i) termination or changes in your Agreement with us, your Card, or the relationship between you and us concerning your Card; (ii) the bankruptcy of any party; and (iii) any transfer, sale or assignment of the Card, or any amounts owed on the Card, to any other person or entity.
Right to Opt-Out: If you do not wish to agree to arbitrate all disputes with us, you must advise us in writing at the following address within thirty (30) days of receipt or activation of the Card (whichever is earlier): Evolve Bank & Trust. Payment Processing Solutions: 6070 Poplar Avenue, Suite 200. Memphis, Tennessee. 38119.
Section 14. MISCELLANEOUS PROVISIONS When any provision in this Agreement states that we may take certain actions, we may do so in our sole discretion. We do not waive our rights by delaying or failing to execute them at any time. To the extent permitted by law and as permitted by the Waiver of Jury Trial and Arbitration above, you agree to be liable to us for any loss, costs, or expenses that we may incur as a result of any dispute or legal proceeding involving your Card. If a court finds any provision of this Agreement invalid or unenforceable, such finding shall not make the rest of this Agreement invalid or unenforceable. To the fullest extent possible, any such provision shall be deemed to be modified so as to be rendered enforceable or valid; however, if such provision cannot be so modified, it shall be stricken and all other provisions of this Agreement in all other respects shall remain valid and enforceable. Section headings in this Agreement are for convenience of reference only, and shall not govern the interpretation of any provision of this Agreement. Any translation of this Agreement is provided for your convenience. The meanings of terms, conditions and representations herein are subject to definitions and interpretations in the English language. Any translation provided may not accurately represent the information in the original English. From time to time, we may monitor and/or record telephone calls between you and us to assure the quality of our customer service or as required or permitted by applicable law.