Consumer Visa Card Agreement
This agreement is effective as of 08/16/2018.
This Empower Finance, Inc. Visa Card Agreement and Disclosure Statement (“Agreement”) applies to the Empower Finance, Inc Visa® Debit Card (“Card”) previously issued, or to be issued, by Evolve Bank and Trust (“Bank,” “us,” “our”) and represents an agreement between you (“you, ” “your, ” “yours”) and Bank and its subsidiaries and affiliates. Bank is pleased to issue you a Card, which enables you to make certain electronic fund transfers to and from your deposit account with Bank (“Deposit Account” or “Account”). You can find a copy of your Deposit Account Agreement on our website at https://empower.me/ or mobile application (if any) (collectively, the “Website”). You do not have to sign this Agreement but you should sign the Card as soon as you receive it – it helps protect against unauthorized use of your Card. By retaining or using the Card or by authorizing anyone else to use the Card, you have agreed to the terms of this Agreement. Please read this Agreement carefully and keep it for future reference.
Table of Contents
1. IMPORTANT INFORMATION ABOUT USING YOUR 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 that identifies each person who obtains a Card. What this means for you: when you register a Card, we will ask for your name, address, date of birth, social security number or tax identification number, and other information that will allow us to identify you. We may also ask to see a copy of your driver’s license or other identifying documents.
2.USE OF YOUR CARD
Each transaction on your Card is subject to the terms of your Deposit Account Agreement. To protect the use of your Card, you will be provided with a personal identification number (“PIN”), which must be used on all automated teller machine (“ATM”) transactions and PIN transactions. You should not disclose your PIN to anyone. If the security or confidentiality of your PIN is compromised, you should notify us at once through the in app chat feature within the Empower App, or by emailing firstname.lastname@example.org. Your Card will allow you to conduct:
PIN Transactions and Visa transactions are accepted solely at the option of individual business establishments, banks and other financial institutions, and you agree that we will not be liable to you for refusal by any such business, bank or financial institution to honor the Card.
3. PREAUTHORIZED RECURRING TRANSFERS; STOPPING PAYMENT ON TRANSACTIONS
If you use your Card or the account number for your Card to authorize in advance any recurring payments from your Deposit Account (for example, a monthly gym membership fee) and later wish to stop one or more of these payments, you should contact the merchant/biller directly. If the merchant/biller fails to stop the recurring payments, contact us through the in app chat feature within the Empower App, or by emailing email@example.com. If you wish us to stop a particular payment, you must notify us as provided in the agreement for the Deposit Account from which this payment is made in time for us to receive your request three (3) business days or more before the payment is scheduled to be made. If you deliver your stop payment request by telephone you must confirm your stop payment order in writing within 21 days of your oral stop payment order. An oral stop payment request will not be binding on us after 21 days if you fail to provide the required written confirmation (which can be in the form of a support message submitted via the Website). Your Card may have to be cancelled in order to stop recurring payments.
4. HOLDS FOR AUTHORIZED TRANSACTIONS
We may place a hold on your Deposit Account for a Card transaction. When you use your Card for certain transactions (including every PIN and many Visa transactions), the merchant accepting your Card may request advance authorization of that transaction. If we authorize a transaction, we may place a temporary “hold” on your Deposit Account for the amount of the authorized transaction, which we refer to as a “POS hold.” A POS hold is not payment for an authorized transaction. We will make payment for a transaction only after the actual transaction is presented to us physically or electronically.
Release of POS holds. Any POS hold on your Deposit Account will be released upon the earlier of: (a) the day we: (i) receive the actual transaction, (ii) post that transaction to your Account for payment, and (iii) match the authorization of that transaction to the actual transaction; or (b) three (3) business days after the date we authorized that transaction. The release of the POS hold will be in the form of a credit to your Deposit Account for the amount of the hold. Credits for released POS holds and payments for Card transactions are posted separately to your Account, and the credit for any particular POS hold is not used to pay the particular transaction for which the hold was placed.
Effect of an authorization hold. Each POS hold will reduce the available balance in your Deposit Account by the amount of the hold. In the event the available balance in your Deposit Account is insufficient to pay items posted to your Account, transactions will decline.
Authorization requests by merchants. Under the Visa rules governing Card transactions, merchants generally are permitted to request authorization only for the actual amount of a transaction. However, certain kinds of merchants in specified situations are permitted to request authorization for a Card transaction in an amount different from the amount of the actual transaction. For example, restaurants and drinking establishments may request authorization for the estimated amount of a transaction, and others may request authorization for an amount up to 20% over the amount of the actual bill in order to cover an anticipated tip. When we receive an authorization request from a merchant, we do not receive information from which to determine whether the request covers the actual amount of a transaction, an estimated amount, or whether the merchant’s request exceeds the amount permitted by the Visa rules.
5. ILLEGAL TRANSACTIONS
You agree that you will not use your Card for any transaction that is illegal in the jurisdiction where you reside, in the jurisdiction where the transaction is consummated, or in any other jurisdiction affected by the transaction. You agree that it is your responsibility to determine the legality of each transaction in all applicable jurisdictions before entering into such transaction. Display of the Visa logo or any other logo by any person accepting the Card does not indicate that the transaction is legal in all applicable jurisdictions. You acknowledge and agree that we have no obligation to monitor, to review or to evaluate the legality of your Card transactions. You also agree that you will not use your Card in connection with any Internet or online gambling transaction or lottery ticket purchase, whether or not the same is legal in any applicable jurisdiction. We may refuse to process any Card transaction that we believe may violate the terms of this Agreement, your Deposit Account agreement or applicable law. To the fullest extent permitted by law, you agree to pay for any Card transaction that you authorized, even if that transaction is determined to be illegal.
6. LIMITATIONS ON FREQUENCY AND DOLLAR AMOUNT OF TRANSACTIONS
For security reasons, there are restrictions imposed on your Card that may limit your ability to use your Card. Some restrictions, which are designed to detect and prevent unauthorized use of your Card, cannot be disclosed. The restrictions imposed on your Card are provided in below.
FREQUENCY OR DOLLAR LIMITS
ATM Cash Withdrawal Limit
$510 a day
$2,500 a day
The daily period to which these limitations apply shall commence at 12:00 Noon on each day and end at 12:00 Noon on the following day (PST). We may add to, remove from or otherwise change our limitations at any time and without notice to you. Because of the limitations imposed by some non-Bank ATMs and in the event of equipment failure or unavailability, you may not be able to withdraw or to access funds even though you have not exceeded these limitations.
7. FEES FOR USE OF THE CARD
Other than the International Service Fee described in the next paragraph, we do not charge any fees for the use or initial issuance of the Card. We will not charge you a fee to use your Card at any in-network ATM, however, operators of other ATMs and cash dispensing devices, their Networks, and merchants may charge you a fee. Some cash dispensing devices appear to be ATMs, but actually may process certain transactions as PIN transactions. If you use your Card multiple times at one of these cash dispensing devices, some transactions may be processed as PIN Transactions and others as ATM Transactions.
8. BUSINESS DAYS
Our business days are Monday through Friday, excluding bank holidays.
9. DEPOSIT ACCOUNT REQUIREMENT
At the time you requested your Card, you opened the deposit account with Bank through Empower Finance, Inc. to which all POS transactions on your Card would be posted, and this deposit account is referred to as your primary Deposit Account. If your primary Deposit Account is closed, you will lose access to your Account and your Card will no longer work.
10. DOCUMENTATION OF TRANSACTIONS
Each time you use your Card, you will receive or be given the option to obtain a receipt for that transaction. You also will receive or we will make available to you a periodic account statement, which will show you the details of all transactions and transfers made with your Card during the covered period.
11. YOUR RESPONSIBILITY FOR TRANSACTIONS USING THE CARD
Subject to the limitations described in Section 12 below, you agree that you are responsible for all transactions using the Card.
12. YOUR CARD OR PIN IS LOST, STOLEN OR SUBJECT TO ANY UNAUTHORIZED USE
You agree to notify us immediately if your Card or PIN is lost or stolen, or if you believe either your Card, PIN, or the account number for your Card is subject to any unauthorized use. You also agree to take any reasonable actions we may request to prevent unauthorized Card use. Contact customer service IMMEDIATELY if a you believe: (a) a Card has been lost or stolen, (b) someone has gained unauthorized access to any access information for your Deposit Account, or (c) someone has transferred or may transfer funds from the Card without your permission. Contact us immediately through the in app chat feature within the Empower App, or by calling us at 833-399-5945 or emailing firstname.lastname@example.org to keep your possible losses to a minimum. You can lock, and cancel your Card in app on the Checking Account page.
13. YOUR LIABILITY FOR UNAUTHORIZED TRANSACTIONS USING THE CARD, PIN, OR CARD ACCOUNT NUMBER
Contact us immediately if you believe that your Card has been lost, stolen or subject to unauthorized use, as provided in Section 11 above. Cancelling your card in Empower App on the Checking Account page is the best way of keeping your possible losses down. You can lose all the money in your Deposit Account.
For Unauthorized ATM and PIN Transactions. If you believe your Card has been lost, stolen or subject to unauthorized use, and you tell us within two (2) business days after learning of the loss, theft, or possible unauthorized use, you can lose no more than $50 if someone used your Card and PIN without your permission. For these transactions, if you DO NOT tell us within two (2) business days after learning of the loss, theft or unauthorized use, and we can prove we could have stopped someone from using your Card if you had told us in time, you could lose as much as $500. If you are a California resident, you will not be liable for the $500 amount described in the prior sentence; however, if you fail to report an unauthorized use that appears on a periodic statement within 60 days of our transmittal or making available your periodic statement to you, then you may be liable for the amount of each unauthorized transfer that occurs after the close of the 60 days and before you provide notice to us, unless the delay in notifying us was due to extenuating circumstances beyond your reasonable control.
For Unauthorized Visa Transactions. If the unauthorized transaction was a Visa transaction, we agree to extend the benefits provided by the Visa Zero Liability program in effect at the time of the unauthorized use, as long as you notify us within a reasonable period of time after the loss or theft of your Card or any unauthorized use of it. We will determine, in our sole discretion, the reasonableness of any particular period of time based on the circumstances. If your own fraudulent action or gross negligence contributes to the unauthorized use of your Card for a Visa transaction, then your liability for that use will be determined as provided above in “For Unauthorized ATM and PIN transactions.” Gross negligence includes but is not limited to your failure to fulfill your obligations under this Agreement, such as your obligations to review your statements and to report any lost or stolen Card or unauthorized use. Also, if your periodic statement shows transfers that you did not make and you DO NOT tell us within sixty (60) days after the statement was mailed or made available to you, you may not get back any money you lost after the sixty (60) day period if we can prove that we could have stopped someone from using your Card or PIN if you had told us in time. If an extenuating circumstance (such as extended travel or hospitalization) prevents you from promptly notifying us of suspected loss, theft or unauthorized use of your Card, the time periods specified in this paragraph may be extended for a reasonable period.
14. OUR LIABILITY FOR FAILURE TO MAKE TRANSFERS
If we do not complete a transfer to or from your Deposit Account on time or in the correct amount according to our agreement with you, we will be liable for all your damages proximately caused by such failure. However, there are some exceptions where we will not be liable, including but not limited to the following:
15.IN CASE OF ERRORS OR QUESTIONS ABOUT YOUR ELECTRONIC TRANSFERS
Contact us through the in app chat feature within the Empower App, or by emailing email@example.com, 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 the statement or receipt. We must allow you to report an error until sixty (60) days after the earlier of the date you electronically accessed your Account, if the error could be viewed in your electronic history, or the date we sent the FIRST written history on which the error appeared. You may request a written history of your transactions at any time through the in app chat feature within the Empower App, or by emailing firstname.lastname@example.org, or by writing to us at PO Box 411484, San Francisco, CA 94141. You will need to tell us:
If you provide this information orally, we may require that you send your complaint or question in writing 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 Account within ten (10) business days for the amount you think is in error, so that you will have use of the money during the time it takes to complete the investigation. If we ask you to put your complaint or question in writing and you do not provide it within ten (10) business days, we may not credit your Account.
For errors involving new Accounts, POS transactions 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 Account for the amount you think is in error.
We will tell you the results within three (3) business days after completing the investigation. If we decide that there was no error, we will send you a written explanation. Copies of the documentation used in the investigation may be obtained by contacting us at the phone number or address shown at the beginning of this section. If you need more information about our error-resolution procedures, contact support by emailing email@example.com.
16. DISCLOSURE OF INFORMATION TO THIRD PARTIES
17. CHANGES TO AND TERMINATION OF THIS AGREEMENT
Except as required by applicable law, we may amend or change the terms and conditions of this Agreement at any time by posting the amended Agreement on the Platform’s Website, and any such amendment shall be effective upon such posting to that Website. The current Agreement is available at Website. You will be notified of any change in the manner provided by applicable law prior to the effective date of the change. However, if the change is made for security purposes or otherwise the change is to your benefit, we may be able to implement such change without prior notice. We may cancel or suspend your Account or this Agreement at any time. You may cancel this Agreement by emailing firstname.lastname@example.org to close your Platform Account. Your termination of this Agreement will not affect any of our rights or your obligations arising under this Agreement prior to termination.
By retaining or using the Card or by authorizing anyone else to use the Card after the effective date of any change to this Agreement, you agree to that change. The Card is our property, is nontransferable and must be surrendered to us upon demand.
18. CONDITIONS UNDER WHICH ATTORNEY’S FEES AND OTHER CHARGES MAY BE IMPOSED
To the extent permitted by applicable law, you shall be liable to us for all costs and damages resulting from any breach of this Agreement; provided, however, that your liability to us for unauthorized use of the Card shall be determined as provided in Section 12 above. If you fail to pay any amounts due under this Agreement and your debt is referred to an attorney(s), not one of our salaried employees for collection or other enforcement proceedings, whether by suit or otherwise, and the unpaid balance of the debt exceeds $300, you agree to pay all reasonable expenses permitted by applicable law, including but not limited to, court costs and attorney’s fees set by the court.
19. GOVERNING LAW; SEVERABILITY
This Agreement and any claim, dispute or controversy arising from or relating to this Agreement, the Card, or any amounts contracted for, charged or received under this Agreement, whether based on contract, tort, fraud and other intentional torts, statute, regulation, constitution, common law and/or equity, are governed by the laws of the State of Tennessee (without regard to internal principles of conflicts of law) and applicable federal law. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain in full force and effect.
At our request, you agree to defend, indemnify, and hold harmless us and our parents, subsidiaries, and other affiliated companies, and our and their employees, contractors, officers, and directors against any and all claims, suits, damages, costs, lawsuits, fines, penalties, liabilities, and expenses (including, without limitation, reasonable attorneys’ fees) that arise from your violation of this Agreement, applicable law, or any third-party rights or your fraud or willful misconduct. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, in which event you will cooperate in asserting any available defenses.
21. NO WARRANTY OF AVAILABILITY OR UNINTERRUPTED USE
From time to time, services related to the Empower Finance, Inc. and the Deposit Account may be inoperative. When this happens, you may be unable to access the Website, and you may be unable to use the Card or obtain information about the Card. Please notify us if you have any problems using the Card or Website. You agree that except as required by applicable law, we will not be responsible for temporary interruptions in service due to maintenance, website changes, or failures, nor shall we be liable for extended interruptions due to failures beyond our control, including but not limited to the failure of interconnecting and operating systems, computer viruses, forces of nature, labor disputes and armed conflicts.
22. LIMITATION OF LIABILITY
Except as required by applicable law, we shall have no liability to you if we are unable to complete a transaction for any reason beyond our control. Except as otherwise expressly provided in this Agreement or as otherwise required by applicable law, we, our affiliates, and the parties with whom we contract in order to offer the Cards, your Deposit Account, and related services are neither responsible nor liable for any indirect, incidental, consequential, special, exemplary, or punitive damages arising out of or relating in any way to the Cards, your Accounts, any products or services purchased using Card, your Deposit Account, or this Agreement (as well as any related or prior agreement you may have had with us).
23. NOTIFICATION OF CHANGES
If your U.S. mail or postal address, or email address or telephone number changes, you must notify us immediately. Failure to do so may result in information regarding the Card or Account being delivered to the wrong person or your transactions being declined.In such event, except to the extent required by applicable law, we shall not be responsible for any resulting misuse of funds available in the Deposit Account.You must notify us immediately in the event of the insolvency, receivership, conservatorship, or bankruptcy.
24. DISPUTE RESOLUTION
Any claim, dispute, or controversy ("Claim") arising out of or relating in any way to: i) this Agreement; ii) the Account or Cards; iii) your acquisition of the Account or Cards; iv) your use of the Account or Cards; v) the amount of available funds in the Account; vi) advertisements, promotions or oral or written statements related to the Account or Cards, as well as goods or services purchased with the Account or Cards; vii) the benefits and services related to the Account or Cards; or viii) transactions made using the Account or Cards, no matter how described, pleaded or styled, shall be FINALLY and EXCLUSIVELY resolved by binding individual arbitration conducted by the American Arbitration Association ("AAA") under its Consumer Arbitration Rules. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act (9 U.S.C. 1-16).The arbitration shall occur in Shelby County, Tennessee.
ARBITRATION OF YOUR CLAIM IS MANDATORY AND BINDING. NEITHER PARTY WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM THROUGH A COURT. IN ARBITRATION, NEITHER PARTY WILL HAVE THE RIGHT TO A JURY TRIAL OR TO ENGAGE IN DISCOVERY, EXCEPT AS PROVIDED FOR IN THE AAA CODE OF PROCEDURE.
For a copy of the procedures, to file a Claim or for other information about this organization, contact it at: AAA, 335 Madison Avenue, New York, NY 10017, or at www.adr.org.
All determinations as to the scope, interpretation, enforceability and validity of this Agreement shall be made final exclusively by the arbitrator, which award shall be binding and final. Judgment on the arbitration award may be entered in any court having jurisdiction.
NO CLASS ACTION, OR OTHER REPRESENTATIVE ACTION OR PRIVATE ATTORNEY GENERAL ACTION OR JOINDER OR CONSOLIDATION OF ANY CLAIM WITH A CLAIM OF ANOTHER PERSON OR CLASS OF CLAIMANTS SHALL BE ALLOWABLE.
This arbitration provision shall survive: i) the termination of the Agreement; ii) the bankruptcy of any party; iii) any transfer, sale or assignment of your Account, or any amounts owed on your Account, to any other person or entity; or iv) closing of the Account. If any portion of this arbitration provision is deemed invalid or unenforceable, the remaining portions shall remain in force.
IF YOU DO NOT AGREE TO THE TERMS OF THIS ARBITRATION AGREEMENT, EMAIL US AT email@example.com TO CLOSE THE CARD ACCOUNT AND REQUEST A REFUND, IF APPLICABLE.
25. VIRTUAL CARD OPTION
If enabled by Platform, you may have the option of accessing your Deposit Account with, in addition to your physical card, a virtual card represented by a 16-digit account number (“Virtual Card”). The Virtual Card may either be single-use, meaning the 16-digit account number will expire after a single transaction, or recurring-use, meaning you may use your 16-digit account number for multiple transactions.
You may elect to add your Virtual Card to one or more digital wallets (“Digital Wallets”) supported by Bank and subject to the Bank's terms for adding your Virtual Card to a Digital Wallet.
The Digital Wallet provider may allow you to conduct transactions at a point of sale device and you may not be able to use your Virtual Card to perform transactions at such point of sale devices until you have selected a PIN pursuant to this Agreement.
You may use your Virtual Card to make purchases at any merchant that accepts Visa debit cards or debit cards of other networks in which the Bank participates, subject to the funds available in your Deposit Account, the transaction limits described above, and the other terms and conditions of this Agreement. You may not use your Virtual Card for making purchases at any vending machines, kiosks or gas station pumps. Each time you use your Virtual Card, you authorize us to reduce the value available in your Deposit Account by the amount of the transaction and any applicable fees. You are not allowed to exceed the amount of available funds in your Deposit Account through an individual transaction or a series of transactions. If you do not have enough funds available in your Deposit Account, you can instruct the merchant to charge a part of the purchase to the Virtual Card and pay the remaining amount using another payment method. These are called “split transactions.” Some merchants do not allow cardholders to conduct split transactions. Nevertheless, if a transaction exceeds the amount of available funds in your Deposit Account, you will be fully liable to us for the full amount of the transaction and any applicable fees. Except for Virtual Cards added to any Digital Wallet, in accordance with and subject to the Digital Wallet Terms, You will not receive a PIN with your Virtual Card or set a PIN for your Virtual Card. When making purchases with your Virtual Card at any POS device other than through a Digital Wallet provider, you may select “CREDIT” on the keypad to make a signature purchase. You may not use your Virtual Card for online gambling or illegal transactions. We may temporarily “freeze” your Deposit Account and attempt to contact you if we notice transactions that are unusual or appear suspicious.
You may not use your Virtual Card to obtain cash anywhere.