This Spruce Debit Card Digital Wallet Agreement contains the terms and conditions that govern the use of your Spruce Card with a Digital Wallet.
1. Definitions. For purposes of this Digital Wallet Agreement (except as otherwise provided in the Arbitration Agreement, these terms have the following meanings.
a. “Device” means an electronic device such as a mobile phone, tablet or smart watch.
b. “Digital Wallet” is a service that allows you to use your Spruce Card on a Device in an electronic format without presenting the physical Spruce Card. Apple Pay® and Google Pay® are examples of Digital Wallets.
c. “Digital Wallet Agreement” means this Spruce Debit Card Digital Wallet Agreement.
d. “Digital Wallet Provider” means the provider of the Digital Wallet, as applicable.
e. “MetaBank” means MetaBank®, National Association, Member FDIC.
f. “Online and Mobile Services Agreement” means the Spruce Online and Mobile Services Agreement.
g. “Spending Account” or “Spruce Spending Account” means the demand deposit checking account established for you at MetaBank.
h. “Spending Account Agreement” means the Spruce Spending Account Agreement to which you agreed when you opened your Spending Account.
i. “Spruce Card” means the Spruce Debit Card, issued by MetaBank, that may be used to access funds in your Spending Account.
j. “We” or “us” refers to MetaBank, together with its third-party service providers (including program manager Emerald Financial Services, LLC, an H&R Block company), as applicable.
k. “You” and “Your” means each person with access to your Spruce Card and Spending Account.
2. Digital Wallet Agreement. By adding your Spruce Card to a Digital Wallet or initiating a transaction with your Spruce Card using a Digital Wallet, you agree to the terms and conditions contained in this Digital Wallet Agreement. This Digital Wallet Agreement supplements your Spending Account Agreement, and all of the terms of your Spending Account Agreement continue to apply. Similarly, all other terms relating to your Spruce Spending Account to which you have separately agreed, such as the Online and Mobile Services Agreement, continue to apply. If any term of this Digital Wallet Agreement conflicts with the Spending Account Agreement or the Online and Mobile Services Agreement, the Spending Account Agreement or the Online and Mobile Services Agreement, as applicable, will control. Your use of a Digital Wallet is also governed by the terms and conditions of the Digital Wallet Provider and other third parties such as wireless companies or data service providers.
3. Adding your Spruce Card to a Digital Wallet. We will determine, in our discretion, if your Spruce Card is eligible for enrollment in a Digital Wallet. If your Spruce Card is eligible, you may add it to a Digital Wallet by following the instructions of your Digital Wallet Provider. By adding your Spruce Card to a Digital Wallet and authenticating and using it with a merchant, you are authorizing payment with your Spruce Card. You will only be allowed to use your Spruce Card for transactions where the Digital Wallet is accepted, which may not be all places where your Spruce Card is accepted. You are solely responsible for following the instructions of your Digital Wallet Provider for adding and maintaining your Spruce Card in the Digital Wallet.
4. Security. After you enroll your Spruce Card into a Digital Wallet, you should secure your Device with the same care you would your Spruce Card. If you share your Device credentials with any other person or fail to secure the Device, another person may be able to use your Device and get access to the Digital Wallet. You should call us immediately if you believe that your Device or authentication credentials have been lost, stolen or compromised in any way, or if an unauthorized person has used or may use your credentials without your authorization. The Digital Wallet Provider is responsible for the security of information provided to it or stored in the Digital Wallet. We are not responsible if there is a security breach affecting any information stored in the Digital Wallet.
5. Use of your information. You agree that we may collect, transmit, store and use technical, location and login or other personal information about you and your use of the Spruce Card through a Digital Wallet. You understand that the Digital Wallet Provider, its affiliates and subcontractors, and any applicable payment network branded on your Spruce Card, as well as its affiliates, agents and subcontractors, will have access to certain details of your transactions made using a Digital Wallet. You authorize us to share non-personal information with the Digital Wallet provider to improve our services and the Digital Wallet. We do not control the privacy and security of your information that may be held by the Digital Wallet provider. You should carefully review the Digital Wallet Provider’s agreements and disclosure relating to its use of your information. We are not responsible for the accuracy or completeness of any information or transaction history that the Digital Wallet Provider makes available to you.
6. Fees. We do not charge you any additional fees for adding your Spruce Card to a Digital Wallet or using a Digital Wallet to pay for a transaction using your Spruce Card, but any applicable fees and charges that apply to your Spruce Card will also apply when you use a Digital Wallet to access your Spruce Card.
7. Nature of Third-Party Digital Wallet. We do not control your Digital Wallet Provider and we do not provide any Digital Wallet to you; we simply permit you to choose to add your Spruce Card to certain Digital Wallets. Our sole responsibility with respect to a transaction on your Spruce Card through the Digital Wallet is to exchange information with the Digital Wallet Provider as necessary to process Spruce Card transactions through the Digital Wallet. We are not responsible for any failure of the Digital Wallet or your inability to use the Digital Wallet for any transaction. We are not responsible for any loss, injury, or inconvenience you may suffer as a result of using your Spruce Card in a Digital Wallet or from a merchant refusing to accept payment from a Digital Wallet. We are not responsible for the performance or non-performance of the Digital Wallet Provider or any other third parties that may impact your use of the Digital Wallet, such as your Device provider or telecommunications provider. We are not responsible for the security or privacy practices of the Digital Wallet Provider. Use of a Digital Wallet involves the electronic transmission of personal information through third party connections over which we have no control and, therefore, we cannot guarantee the privacy or security of such transmissions. You should contact the Digital Wallet Provider if you have any problems or need assistance with the Digital Wallet.
8. Limitation of Liability. EXCEPT AS OTHERWISE PROVIDED IN THIS DIGITAL WALLET AGREEMENT OR AS REQUIRED BY APPLICABLE LAW, ANY SERVICES WE PROVIDE TO ENABLE YOU TO USE YOUR SPRUCE CARD IN A DIGITAL WALLET ARE PROVIDED TO YOU “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE ARE NOT RESPONSIBLE FOR ANY COST, LOSS, INJURY OR DAMAGE (WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL, INCLUDING ATTORNEYS' FEES AND LOST PROFITS, EVEN IF WE ARE ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES) CAUSED BY THE DIGITAL WALLET OR THE USE THEREOF, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE FROM SUBSEQUENT WRONGFUL DISHONOR OR ANY CLAIM ARISING OUT OF THE USE OF THE DIGITAL WALLET ON YOUR DEVICE.
9. Indemnification. Unless caused by our intentional misconduct or gross negligence, you agree, to the extent permitted by applicable law, to indemnify, defend and hold harmless MetaBank and our third-party service providers (including Emerald Financial Services, LLC), as well as our or their respective direct and indirect parents, subsidiaries, affiliates, officers, directors, employees, consultants, agents, service providers, licensors, successors, assigns, and the franchisees of any of them, from any and all liabilities, damages, expenses and costs (including attorneys' fees) arising from third-party claims, disputes, actions or allegations, including those related to infringement, misuse, or misappropriation of information or otherwise, in connection with your use of a Digital Wallet, your violation of any law or rights of a third party, or related activity.
10. Arbitration if a Dispute Arises (“Arbitration Agreement”)
a. Scope of Arbitration Agreement. You and the Covered Parties agree that all disputes and claims between you and the Covered Parties shall be resolved through binding individual arbitration unless you opt out of this Arbitration Agreement using the process explained below. However, to the fullest extent permitted by applicable law, either you or the Covered Parties may elect that an individual claim be decided in small claims court, as long as it is brought and maintained as an individualized claim. All issues are for the arbitrator to decide, except that issues relating to the arbitrability of disputes and the validity, enforceability, and scope of this Arbitration Agreement, including the interpretation of Sections 10(b), (d), and (f) below, shall be decided by a court and not an arbitrator. The terms “Covered Parties” or “we” or “us” in this Arbitration Agreement include MetaBank®, National Association; HRB Digital LLC.; and Emerald Financial Services, LLC; their respective direct or indirect parents, subsidiaries, and affiliates; and the predecessors, successors, officers, directors, agents, employees and franchisees of any of them.
Arbitration Opt Out: You may opt out of this Arbitration Agreement within 30 days after you sign this Agreement by filling out the form at www.arbitrationoptout.com/metabank, or by sending a signed letter to MetaBank Arbitration Opt Out, P.O. Box 5846, Kansas City, MO 64171. The letter should include your printed name, address, the first five digits of your Social Security Number, and the words “Reject Arbitration.” If you opt out of this Arbitration Agreement, any prior arbitration agreement shall remain in force and effect.
b. Commencing Arbitration. You or we may commence an arbitration proceeding only if you and we do not reach an agreement to resolve the dispute or claim during the Informal Resolution Period (defined below).
i. Pre-Arbitration Notice of Dispute. A party who intends to seek arbitration must first mail a written Notice of Dispute ("Notice") to the other party. The Notice to the Covered Parties should be addressed to: EFS-Legal Department, Attention: Notice of Dispute, 1301 Main Street, Kansas City, MO 64105. The Notice must be on an individual basis and include all of the following: (1) the claimant’s name, telephone number, and e-mail address; (2) the nature or basis of the dispute or claim; and (3) the specific relief sought.
ii. Informal Settlement Conference. After the Notice containing all of the information required above is received, within 60 days either party may request a conference to discuss informal resolution of the dispute (“Informal Settlement Conference”). If timely requested, the Informal Settlement Conference will take place at a mutually agreeable time by telephone or videoconference. You and our business representative must both personally participate in a good-faith effort to settle the dispute without the need to proceed with arbitration. The requirement of personal participation in an Informal Settlement Conference may be waived only if both you and we agree in writing. Any counsel representing you or us may also participate; however, if you have retained counsel, a signed statement may be required by law to authorize certain Covered Parties to disclose your confidential tax and account records to your counsel. Any applicable statute of limitations will be tolled during the period between the date that either you or we send the other a fully complete Notice, until the later of (1) 60 days after receipt of the Notice; or (2) if a Settlement Conference is timely requested, 30 days after completion of the Settlement Conference (the “Informal Resolution Period”). The parties agree that the existence or substance of any settlement discussions shall not be disclosed.
iii. Enforcement of Pre-Arbitration Requirements. A court will have the sole authority to enforce this Section 10(b), including the power to enjoin the filing or prosecution of an arbitration if you or we do not first provide a fully complete Notice and participate in a timely requested Informal Settlement Conference.
c. How Arbitration Works. Arbitration shall be conducted by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules (“AAA Rules”), as modified by this Arbitration Agreement. AAA Rules are available on AAA’s website www.adr.org, or by calling AAA at 800-778-7879. If AAA is unavailable or unwilling to administer the arbitration consistent with this Arbitration Agreement, the parties shall agree to, or the court shall select, another arbitration provider. Unless the parties agree otherwise, any arbitration hearing shall take place in the county of your residence. The arbitrator will be either a retired judge or an attorney specifically licensed to practice law in the state of your residence and selected by the parties from the arbitration provider’s national roster of arbitrators. The arbitrator will be selected using the following procedure: (1) the arbitration provider will send the parties a list of five candidates meeting this criteria; (2) if the parties cannot agree on an arbitrator from the list, each party shall return its list to the arbitration provider within 10 days, striking up to two candidates, and ranking the remaining candidates in order of preference; (3) the arbitration provider shall appoint as arbitrator the candidate with the highest aggregate ranking; and (4) if for any reason the appointment cannot be made according to this procedure, the arbitration provider will provide the parties a new list of five candidates meeting the above criteria until an appointment can be made.
d. Waiver of Right to Bring Class Action and Representative Claims. All arbitrations shall proceed on an individual basis. The arbitrator is empowered to resolve the dispute with the same remedies available in court, including compensatory, statutory, and punitive damages; attorneys’ fees; and declaratory, injunctive, and equitable relief. However, the arbitrator’s rulings or any relief granted must be individualized to you and shall not apply to or affect any other client. The arbitrator is also empowered to resolve the dispute with the same defenses available in court, including but not limited to statutes of limitation. You and the Covered Parties also agree that each may bring claims against the other in arbitration only in your or their respective individual capacities and in so doing you and the Covered Parties hereby waive the right to a trial by jury, to assert or participate in a class action lawsuit or class action arbitration, to assert or participate in a private attorney general lawsuit or private attorney general arbitration, and to assert or participate in any joint or consolidated lawsuit or joint or consolidated arbitration of any kind. If a court decides that applicable law precludes enforcement of any of this section’s limitations as to a particular claim or any particular request for a remedy for a claim (such as a request for public injunctive relief), then the parties agree that the particular claim or the particular request for a remedy (and only that particular claim or particular request for a remedy) must remain in court and be severed from any arbitration. No arbitration shall proceed in any manner as a class action arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims, unless all parties consent in writing.
e. Arbitration Costs. Payment of all filing, administrative, arbitrator, and hearing fees will be governed by AAA Rules, but if you inform us that you cannot afford to pay your share of the fees, we will consider advancing those fees on your behalf. In addition, we will reimburse you for your share of the fees at the conclusion of the arbitration (regardless of who wins), so long as (i) you complied with Sections 10(b) and (d) above and Section 10(f) below, and (ii) neither the substance of your claim nor the relief you sought was determined to be frivolous or brought for an improper purpose as measured by the standards set forth in Federal Rule of Civil Procedure 11(b); otherwise, the payment of fees will be governed by AAA Rules and you agree to reimburse the Covered Parties for all fees advanced on your behalf.
f. Arbitration of Similar Claims. If 25 or more claimants submit Notices raising similar claims and are represented by the same or coordinated counsel, all of the cases must be resolved in arbitration in stages using staged bellwether proceedings if they are not resolved during the Informal Resolution Period. The parties agree that the individual resolution of claims in arbitration might be delayed if the claims are pursued in connection with 25 or more similar claims. In the first stage, the parties shall each select up to 10 cases per side (20 cases total) to be filed in arbitration and resolved individually in accordance with this Arbitration Agreement, with each case assigned to a separate arbitrator. In the meantime, no other cases may be filed in arbitration. If the parties are unable to resolve the remaining cases after the conclusion of the first stage bellwether proceeding, each side may select up to another 10 cases per side (20 cases total) to be filed in arbitration and resolved individually in accordance with this Arbitration Agreement. During this second stage, no other cases may be filed in arbitration. This process of staged bellwether proceedings shall continue until the parties are able to resolve all of the claims, either through settlement or arbitration. If the filing procedures in this Section 10(f) apply to a claimant’s Notice, any statute of limitations applicable to the claims set forth in that Notice will be tolled from the time the first cases are selected for a bellwether proceeding until the claimant’s Notice is selected for a bellwether proceeding, withdrawn, or otherwise resolved. A court will have the sole authority to enforce this Section 10(f) and, if necessary, to enjoin the filing or prosecution of arbitrations.
g. Other Terms. This Arbitration Agreement shall be governed by, and interpreted, construed, and enforced in accordance with, the Federal Arbitration Act and other applicable federal law. Except as set forth above in Section 10(d), if any portion of this Arbitration Agreement is deemed invalid or unenforceable, it will not invalidate the remaining portions of the Arbitration Agreement. No arbitration award or decision will have any preclusive effect as to any issues or claims in any dispute, arbitration, or court proceeding where any party was not a named party in the arbitration, unless and except as required by applicable law. Notwithstanding any provision in this Agreement to the contrary, we will not make any material change to this Arbitration Agreement without providing you with an opportunity to reject the change. Rejection of any future change will not impact this or any prior Arbitration Agreement to which you have agreed.
11. Removing your Spruce Card from a Digital Wallet. You must follow the instructions of your Digital Wallet Provider to remove your Spruce Card from the Digital Wallet. You are solely responsible for removing your Spruce Card from the Digital Wallet or terminating your agreement with the Digital Wallet Provider. Except as otherwise required by applicable law, we reserve the right to restrict, suspend or terminate your use of your Spruce Card with a Digital Wallet at any time without notice and for any reason. We will not be liable to you or any third party for any restriction, suspension or termination of your use of your Spruce Card with a Digital Wallet. You are responsible for deleting your Spruce Card and Digital Wallet login information from your Device if they are not in use and/or you will no longer be the owner of your Device.
12. Modification and termination of this Digital Wallet Agreement. We may modify or terminate this Digital Wallet Agreement at any time without notice to you, except to the extent notice is required by law. When we make changes, we will update this Digital Wallet Agreement and post the revised Digital Wallet Agreement within the Spruce App or online at SpruceMoney.com or by update to your Digital Wallet, unless an immediate change is necessary to maintain the security of our systems. Use of your Spruce Card in your Digital Wallet after any changes to your Digital Wallet Agreement indicates your agreement to the changes. If you do not agree to the changes, you must discontinue using your Spruce Card in your Digital Wallet.
The Spruce℠ Spending Account is established at, and the Spruce debit card is issued by, MetaBank®, N.A., Member FDIC, pursuant to a license by Mastercard International Incorporated. Mastercard® and the circles design are registered trademarks of Mastercard International Incorporated