Exhibit
10.6


 


TERMS
OF USE


 


PLEASE CAREFULLY REVIEW THESE
TERMS AND CONDITIONS OF USE BEFORE USING THIS SITE.  ANY USE OF THIS WEBSITE CREATES A BINDING
AGREEMENT TO COMPLY WITH THESE TERMS AND CONDITIONS.  IF YOU DO NOT AGREE TO THESE TERMS, YOU
SHOULD EXIT THIS SITE IMMEDIATELY.


 


USER AGREEMENT


The following are terms of a legal agreement
(the “Agreement”) between you and Prosper Marketplace, Inc. (“Prosper”) that
sets forth the terms and conditions for your use of this web site (the “Site”).  The Site is owned and operated by
Prosper.  This Site is being provided to
you expressly subject to this Agreement. 
By accessing, browsing and/or using the Site, you acknowledge that you
have read, understood, and agree to be bound by the terms of this Agreement and
to comply with all applicable laws and regulations.  The terms and conditions of this Agreement
form an essential basis of the bargain between you and Prosper.


 


Prosper reserves the right to amend this
Agreement at any time and will notify you of any such changes by posting the
revised Agreement on the Site. You should check this Agreement periodically for
changes.  All changes shall be effective
upon posting.  Your continued use of the
Site after any change to this Agreement constitutes your agreement to be bound
by any such changes. Prosper may terminate, suspend, change, or restrict
access to all or any part of this Site without notice or liability.


 


LIMITATIONS OF USE


The copyright in all material on this Site,
including without limitation the text, data, articles, design, source code,
software, photos, images and other information (collectively the “Content”), is held
by Prosper or by the original creator of the material and is protected by
U.S. and International copyright laws and treaties.  You agree that the Content may not be copied,
reproduced, distributed, republished, displayed, posted or transmitted in any
form or by any means, including, but not limited to, electronic, mechanical,
photocopying, recording, or otherwise, without the express prior written
consent of Prosper.  You acknowledge
that the Content is and shall remain the property of Prosper. You may not
modify, participate in the sale or transfer of, or create derivative works
based on any Content, in whole or in part. 
The use of the Content on any other Site, including by linking or
framing, or in any networked computer environment for any purpose, is
prohibited without Prosper’s prior written approval.  You also may not, without Prosper’s express
written permission, “mirror” any material contained on this Site on any other
server.  Any unauthorized use of any
Content on this Site may violate copyright laws, trademark laws, the laws of
privacy and publicity, and communications statutes and regulations.


 


You agree to use the Content and Site only
for lawful purposes.  You are prohibited
from any use of the Content or Site that would constitute a violation of any
applicable law, regulation, rule or ordinance of any nationality, state, or
locality or of any international 


 


 


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law or treaty, or that could give rise to any
civil or criminal liability.  Any
unauthorized use of the Site, including but not limited to unauthorized entry
into Prosper’s systems, misuse of passwords, or misuse of any information
posted on the Site is strictly prohibited. 
Prosper makes no claims concerning whether the Content may be downloaded
or is appropriate for use outside of the United States.  If you access this Site from outside of the
United States, you are solely responsible for ensuring compliance with the laws
of your specific jurisdiction.  Your
eligibility for particular products or services is subject to final
determination by Prosper.




Members of the Prosper community must be U.S. Residents that are 18 years of
age or older. Children under the age of 18 are not eligible to participate in
the offerings on this website.


 


CONTENT AND USE RESTRICTIONS


You agree not to post, upload, publish, display, transmit, share, store or otherwise make or
attempt to make publicly available on the Site or on any other website, or in
any email, blog, forum, medium or other communication of any kind, any private
or personally identifiable information of any Prosper member or other third
party, including, without limitation, names, addresses, phone numbers, email
addresses, Social Security numbers, driver’s license numbers, or bank account
or credit card numbers, whether or not such private or personally identifiable
information is displayed on or ascertainable from the Site, or obtained or
obtainable from sources unrelated to the Site (such as from a “Google® search”
or other online research).


 


You agree to not to use the Site or any
Content to upload, post, email, transmit or otherwise make available any
unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,”
“chain letters,” “pyramid schemes,” or any other form of commercial or
non-commercial solicitation or bulk communications of any kind to any Prosper
member or other third party. In order to protect Prosper members from such
advertising or solicitation, Prosper reserves the right to restrict the number
of emails which a member may send to other members in any 24-hour period to a
number which Prosper deems appropriate in our sole discretion. Directly contacting
more than ten (10) Prosper members with a materially identical message within a
24-hour period is presumed to be spam and a violation of this Agreement.


 


PATENT INFORMATION


Technologies and processes embodied in and
used by this Site are covered by one or more Prosper U.S. patents and by other
patents pending.


 


TRADEMARKS


Prosper (including the Prosper logo),
Prosper.com, and all related logos (collectively the “Prosper trademarks”) are
trademarks or service marks of Prosper. 
Other company, product, and service names and logos used and displayed
on this Site may be trademarks or service marks owned by Prosper or
others.  Nothing on this Site should be
construed as granting, by implication, estoppel, or otherwise, any license or
right to use any of the Prosper trademarks displayed on this Site, without our
prior written permission in each 


 


 


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instance. 
You may not use, copy, display, distribute, modify or reproduce any of
the trademarks found on the Site unless in accordance with written
authorization by us.  Prosper prohibits
use of any of the Prosper trademarks as part of a link to or from any site
unless establishment of such a link is approved in writing by us in
advance.  Any questions concerning any
Prosper Trademarks, or whether any mark or logo is a Prosper Trademark, should
be referred to Prosper.


 


LINKS TO THIRD-PARTY SITES


This site may contain links to web sites
controlled, owned, and operated by third parties (the “third-party sites”).  Prosper cannot control and has no
responsibility for the accuracy or availability of information provided on the
third-party sites.  You acknowledge that
use of any third-party sites is governed by the terms of use for those
websites, and not by this Agreement. 
Links to third-party sites do not constitute an endorsement or
recommendation by Prosper of such sites or the content, products,
advertising or other materials presented on such sites, but are only for your
convenience and you access them at your own risk.  Such third-party sites may have a privacy
policy different from that of Prosper and the third-party site may provide less
security than this Site.  Prosper is not
responsible for the content of any third-party web sites, nor does Prosper make
any warranties or representations, express or implied, regarding the content
(or the accuracy of such content) on any third-party web sites, and Prosper
shall have no liability of any nature whatsoever for any failure of products or
services offered or advertised at such sites or otherwise.


 


DISCLAIMER
OF WARRANTIES

NONE OF PROSPER, ANY OF ITS AFFILIATES, PROVIDERS OR THEIR RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INDEPENDENT CONTRACTORS OR LICENSORS
(COLLECTIVELY THE “PROSPER PARTIES”) GUARANTEES THE ACCURACY, ADEQUACY,
TIMELINESS, RELIABILITY, COMPLETENESS, OR USEFULNESS OF ANY OF THE CONTENT AND
PROSPER DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THE CONTENT.


 


THIS SITE AND ALL OF THE CONTENT IS PROVIDED “AS
IS” AND “AS AVAILABLE,” WITHOUT ANY WARRANTY, EITHER EXPRESS OR IMPLIED,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT OR TITLE. ADDITIONALLY, THERE ARE NO WARRANTIES AS TO
THE RESULTS OF YOUR USE OF THE CONTENT. PROSPER PARTIES DO NOT WARRANT THAT THE
SITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.  THIS DOES NOT AFFECT THOSE WARRANTIES WHICH
ARE INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS
APPLICABLE TO THIS AGREEMENT.


 


PROSPER MAY DISCONTINUE OR MAKE CHANGES IN
THE CONTENT AND SITE AT ANY TIME WITHOUT PRIOR NOTICE TO YOU AND WITHOUT ANY
LIABILITY TO YOU.  ANY DATED INFORMATION
IS PUBLISHED AS OF ITS DATE ONLY, AND PROSPER PARTIES DO NOT UNDERTAKE ANY 


 


 


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OBLIGATION OR RESPONSIBILITY TO UPDATE OR
AMEND ANY SUCH INFORMATION.  PROSPER
RESERVES THE RIGHT TO TERMINATE ANY OR ALL SITE OFFERINGS OR TRANSMISSIONS
WITHOUT PRIOR NOTICE TO YOU.  THIS SITE
COULD CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS.  USE OF THIS SITE IS AT YOUR OWN RISK.


 


LIMITATION OF LIABILITY


UNDER NO CIRCUMSTANCES WILL PROSPER
PARTIES BE LIABLE FOR ANY DAMAGES INCLUDING GENERAL, SPECIAL, DIRECT, INDIRECT,
INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR ANY OTHER DAMAGES (INCLUDING, WITHOUT
LIMITATION, LOST PROFITS OR BUSINESS INTERRUPTION) OF ANY KIND WHETHER IN AN
ACTION IN CONTRACT OR NEGLIGENCE ARISING OR RELATING IN ANY WAY TO THE USE OR
INABILITY TO USE BY ANY PARTY OF THE CONTENT, THE SITE OR ANY THIRD-PARTY SITE
TO WHICH THIS SITE IS LINKED, OR IN CONNECTION WITH ANY FAILURE OF PERFORMANCE,
ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION,
COMPUTER VIRUS OR LINE OR SYSTEM FAILURE, EVEN IF PROSPER PARTIES, OR
REPRESENTATIVES THEREOF, ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES
OR EXPENSES. PROSPER IS NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR
ILLEGAL CONDUCT OF ANY USER. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THIS
SITE IS TO STOP USING THE SITE. IF YOUR USE OF MATERIALS FROM THIS SITE RESULTS
IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF EQUIPMENT OR DATA, YOU
ASSUME ANY COSTS THEREOF. IF THE FOREGOING LIMITATION IS FOUND TO BE INVALID,
YOU AGREE THAT PROSPER PARTIES’ TOTAL LIABILITY FOR ALL DAMAGES, LOSSES,
OR CAUSES OF ACTION OF ANY KIND OR NATURE SHALL BE LIMITED TO THE GREATEST
EXTENT PERMITTED BY APPLICABLE LAW.


 


INDEMNIFICATION


You agree to indemnify and hold harmless
Prosper Parties from and against any and all claims, losses, expenses, demands
or liabilities, including attorneys’ fees and costs, incurred by the Prosper
Parties in connection with any claim by a third party (including any
intellectual property claim) arising out of (i) materials and content you
submit to, post to or transmit through the Site, or (ii) your use of the Site
in violation of this Agreement or in violation of any applicable law. You
further agree that you will cooperate fully in the defense of any such claims.
Prosper Parties reserve the right, at their own expense, to assume the
exclusive defense and control of any matter otherwise subject to
indemnification by you, and you shall not in any event settle any such claim or
matter without the written consent of Prosper. You further agree to indemnify
and hold harmless Prosper Parties from any claim arising from a third party’s
use of information or materials of any kind that you post to the Site.


 


 


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MONITORING OF THE SITE


Prosper has no obligation to monitor the
Site; however, you acknowledge and agree that Prosper has the right to
monitor the Site electronically from time to time and to disclose any
information as necessary or appropriate to satisfy any law, regulation or other
governmental request, to operate the Site, or to protect itself or other users
of the Site.


 


SUBMISSIONS TO THE SITE


All remarks, discussions, ideas, concepts,
know-how, techniques, graphics or other submissions communicated to Prosper
through this Site (collectively, “Submissions”) will be
deemed and remain the property of Prosper, and Prosper is entitled to use
any Submission for any purpose, without restriction or compensation to the
individual who has provided the Submission.  Prosper shall not be subject
to any obligations of confidentiality regarding Submissions except as expressly
agreed by Prosper or as otherwise required by applicable law.  Nothing herein contained shall be construed
as limiting Prosper’s responsibilities and obligations under its Privacy
Policy.


 


USE OF PERSONALLY IDENTIFIABLE
INFORMATION


Prosper’s practices and policies with respect
to the collection and use of personally identifiable information are governed
by Prosper’s Privacy Policy.


 


AVAILABILITY


This Site is not intended for distribution
to, or use by, any person or entity in any jurisdiction or country where such
distribution or use would be contrary to applicable law or regulation.  By offering this site and Content no
distribution or solicitation is made by Prosper to any person to use the Site
or Content in jurisdictions where the provision of the site and/or content is
prohibited by law.


 


TERMINATION


This Agreement is effective until terminated
by Prosper.  Prosper may terminate this Agreement  at any time without notice, or suspend or
terminate your access and use of the Site at any time, with or without cause,
in Prosper’s absolute discretion and without notice.  The following provisions of this Agreement
shall survive termination of your use or access to the Site: the sections
concerning Indemnification, Disclaimer of Warranties, Limitation of Liability,
Waiver, Applicable Law and Dispute Resolution, and General Provisions, and any
other provision that by its terms survives termination of your use or access to
the Site.


 


WAIVER


Failure by Prosper to enforce any of its
rights under this Agreement shall not be construed as a waiver of those rights
or any other rights in any way whatsoever.


 


APPLICABLE LAW AND DISPUTE
RESOLUTION


This Agreement and all other aspects of your
use of the Site shall be governed by and construed in accordance with the laws
of the United States and, to the extent applicable, to the laws of the State of
California, without regard to its conflict of laws rules.  You agree that you will notify Prosper in
writing of any claim or dispute concerning or 


 


 


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relating to the Site and the information or
services provided through it, and give Prosper a reasonable period of time to
address it BEFORE bringing any legal action, either individually, as a class
member or representative, or as a private attorney general, against Prosper.


 


OTHER AGREEMENTS


This Agreement shall be subject to any other
agreements you have entered into with Prosper.


 


ADDITIONAL TERMS


Certain sections or pages on the Site may
contain separate terms and conditions of use, which are in addition to the
terms and conditions of this Agreement. 
In the event of a conflict, the additional terms and conditions will
govern for those sections or pages.


 


SEVERABILITY


If any provision of this Agreement is found
to be invalid or unenforceable, the remaining provisions shall be enforced to
the fullest extent possible, and the remaining provisions of the Agreement
shall remain in full force and effect.


 


GENERAL PROVISIONS


This Agreement supersedes any previous Terms
of Use Agreement to which you and Prosper may have been bound.  This Agreement will be binding on, inure to
the benefit of, and be enforceable against the parties and their respective
successors and assigns. Neither the course of conduct between parties nor trade
practice shall act to modify any provision of the Agreement. All rights not
expressly granted herein are hereby reserved. 
Headings are for reference purposes only and in no way define, limit,
construe or describe the scope or extent of such section.


 


COPYRIGHT COMPLAINTS

If you believe, in good faith, that any materials on the Site infringe
your copyrights, notifications of claimed copyright infringement should be sent
to Prosper’s designated agent. 
Notification should include:


 


•                  an electronic or physical
signature of the person authorized to act on behalf of the owner of the
copyright interest;


•                  a description of the
copyrighted work that you claim has been infringed;


•                  a description of where the
material you claim is infringing is located on the Site;


•                  a statement by you that you
have a good faith belief that the disputed use is not authorized by the
copyright owner, its agent or the law; and


•                  a statement by you, made
under penalty of perjury, that the above information in your notice is accurate
and that you are the copyright owner or duly authorized to act on the copyright
owner’s behalf.


 


Prosper’s agent for notification of claimed
copyright infringement is: Edward A. Giedgowd, telephone: (415) 593-5400, fax:
(415) 362-7233, email: copyright@prosper.com.


 


 


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CONTACTING US


If you have questions regarding the Agreement
or the practices of Prosper, please contact us by e-mail at
compliance@prosper.com or by regular mail at Prosper Marketplace,
Inc., 111 Sutter Street, 22nd Floor, San Francisco, California 94104,
Attention: General Counsel.


 


 


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