Terms & Conditions

ProsperWorks, Inc.
Terms of Service
Date of Last Revision: April 24, 2014

Acceptance of Terms.

ProsperWorks, Inc. (“ProsperWorks”) provides its Service (as defined below) to you through its website located athttps://www.prosperworks.com (the “Site”), subject to this Terms of Service agreement (“TOS”). By accepting this TOS or by accessing or using the Service or Site, you acknowledge that you have read, understood, and agree to be bound by this TOS and our Privacy Policy (available athttps://www.prosperworks.com/privacy/), which is incorporated by reference herein . If you are entering into this TOS on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this TOS, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with this TOS, you must not accept this TOS and may not use the Service.

ProsperWorks may change this TOS from time to time. If we do this, we will post the changes to this TOS on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Service user interface, in an email notification or through other reasonable means. Any such changes will become effective upon the earlier of (a) your use of the Site and/or Service with actual knowledge of the change, or thirty (30) days after they are posted. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new TOS, provided that disputes arising hereunder will be resolved in accordance with the TOS in place at the time the facts giving rise to the dispute occurred. Notwithstanding the generality of the foregoing, you understand and acknowledge that you are agreeing to arbitrate disputes arising hereunder (as described in further detail under the heading “Arbitration Agreement”, below), and that the terms of our Arbitration Agreement will not be modified without your express acceptance.

Description of Service. The “Service” includes (a) the Site, (b) ProsperWorks’ customer relationship management services and related technologies, and (c) any software (including the Software, as defined below), data, reports, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the “Content”), other than Your Content. Any new features added to or augmenting the Service are also subject to this TOS.

General Conditions/ Access and Use of the Service.

Subject to full and ongoing compliance with all the terms and conditions of this TOS, including without limitation any and all payment obligations, you may access and use the Service only for its intended purpose, and only for lawful purposes, and in no event in connection with competitive research or for scoping, benchmarking, developing, or providing any similar or competitive product or service. All rights, title and interest in and to the Service and its components will remain with and belong exclusively to ProsperWorks. You shall not display, distribute, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sublicense, sell, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit (other than internal business use for its intended purpose) or make the Service available to any third party, or use the Service to in connection with the development or provision of any similar or competitive product or service. You shall comply with any codes of conduct, policies or other notices ProsperWorks provides you or publishes in connection with the Service (including without limitation the AUP (as defined below)), and you shall promptly notify ProsperWorks if you learn of a security breach related to the Service.

In addition to (and without limiting the generality of) the other terms and conditions of this TOS, you hereby agree to comply with ProsperWorks’ acceptable use policy (“AUP”), as described in this section. You will not use the Service to (or assist another person to):

email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of ProsperWorks, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose ProsperWorks or its users to any harm or liability of any type;

interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or violate any applicable local, state, national or international law, or any regulations having the force of law;

impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;

solicit personal information from or otherwise collect information regarding anyone under the age of 18;

harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;

advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;

further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or

obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.

Any software that may be distributed to you by ProsperWorks in connection with the Service (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this TOS, ProsperWorks hereby grants you, where applicable, a personal, non-transferable, non-sublicensable and non-exclusive right and license to use the object code of any Software on a single device solely in connection with the Service, provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, sublicense or otherwise transfer any right in any Software. Software and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content. You agree not to access the Service by any means other than through the interface that is provided by ProsperWorks for use in accessing the Service. Any rights not expressly granted herein are reserved and no license or right to use any trademark of ProsperWorks or any third party is granted to you in connection with the Service.

You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you upload, post, deliver, publish, provide or otherwise link, transmit or store (hereafter “post(ing)”) in connection with or relating to the Service (“Your Content”). You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login or account. ProsperWorks reserves the right to access your account in order to respond to your requests for technical support. While You retain ownership of Your Content, by posting Your Content on or through the Service, You hereby do and shall grant ProsperWorks a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform Your Content in connection with the Service. ProsperWorks has the right, but not the obligation, to monitor the Service, Content, or Your Content. You further agree that ProsperWorks may remove or disable any Content (including Your Content) at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all. ProsperWorks has the right, but not the obligation, to monitor the Service, Content, or Your Content and to disclose Your Content if required to do so by law or in the good faith belief that such action is necessary to (i) comply with a legal obligation, (ii) protect and defend the rights or property of ProsperWorks, (iii) act in urgent circumstances to protect the personal safety of users of the Services or the public, or (iv) protect against legal liability. You further agree that ProsperWorks may remove or disable any Content, including Your Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all. You represent, warrant, and covenant that you own or have sufficient rights to Your Content to grant the foregoing licenses, and that use of Your Content in connection with the Service as contemplated herein does not and will not infringe, misappropriate, or violate the rights of any third party (including without limitation any intellectual property rights, moral rights, publicity rights, or privacy rights), or violate any law or regulation.

You understand that the operation of the Service, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices; (c) transmission to ProsperWorks’ third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service and (d) transmission to certain Third-Party Services (as defined in below). Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. ProsperWorks will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.

The failure of ProsperWorks to exercise or enforce any right or provision of this TOS shall not be a waiver of that right. You acknowledge that this TOS is a contract between you and ProsperWorks, even though it is electronic and is not physically signed by you and ProsperWorks, and it governs your use of the Service and takes the place of any prior agreements between you and ProsperWorks. If any provision of this TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this TOS remain in full force and effect.

ProsperWorks reserves the right to use your name and/or company name, logo, and trademarks and to identify you as a ProsperWorks user or customer, and for other similar marketing or promotional purposes on ProsperWorks’ website and in other communications and collateral materials provided to with existing or potential ProsperWorks customers, partners, and investors. To decline ProsperWorks this right you need to email support@prosperworks.com stating that you do not wish to be used as a reference.

Third-Party Services.

The Service enables linking between various online third-party services such as third party email, cloud storage, social, and similar services (“Third-Party Services”). To take advantage of these feature and capabilities, we may ask you to authenticate, register for or log into Third-Party Services through the Service or on the websites of their respective providers. By linking your account on the Service to your account on a Third Party Service, you are authorizing ProsperWorks as your agent to access your Third Party Service account (and any information, content, materials, and features included therein) and use such Third Party Service (with read and write privileges) on your behalf for the purpose of integrating your experience on the Service with such Third Party Service. For more information about the implications of activating these Third-Party Services and ProsperWorks’ use, storage and disclosure of information related to you and your use of Third-Party Services within ProsperWorks, please see our Privacy Policy. However, please remember that the manner in which Third-Party Services use, store and disclose your information is governed solely by the policies of such third parties.

The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet (including without limitation Third-Party Services). ProsperWorks has no control over such sites and resources and ProsperWorks is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that ProsperWorks will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that ProsperWorks is not liable for any loss or claim that you may have against any such third party.

The Service may include certain services that are available via a mobile device, including (i) the ability to upload content to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.

Apple-Enabled Software Applications.

ProsperWorks may offer Software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”), among other platforms. With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in this TOS, the following terms and conditions apply:

ProsperWorks and you acknowledge that this TOS are concluded between ProsperWorks and you only, and not with Apple, and that as between ProsperWorks and Apple, ProsperWorks, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.

You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store TOS.

Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store TOS.

Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.

Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be ProsperWorks’ sole responsibility, to the extent it cannot be disclaimed under applicable law.

ProsperWorks and you acknowledge that ProsperWorks, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between ProsperWorks and Apple, ProsperWorks, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to ProsperWorks as follows:

support@prosperworks.com

ProsperWorks and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this TOS with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of this TOS, Apple will have the right (and will be deemed to have accepted the right) to enforce this TOS against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.

Payment. To the extent the Service or any portion thereof is made available for any fee, you will be required to select a payment plan and provide ProsperWorks information regarding your credit card or other payment instrument. You represent and warrant to ProsperWorks that such information is, and will be maintained as, true, complete, accurate, and up to date, and that you are authorized to use the payment instrument. You hereby authorize ProsperWorks to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. All fees are nonrefundable provided that if ProsperWorks terminates your account on the Service without cause, you will be entitled to a pro-rated refund of amounts paid in advance for services not yet rendered. All fees may be changed by ProsperWorks on a going forward basis at any time (including commencing charging a fee for features of the Service that were previously free).

Representations and Warranties. You represent and warrant to ProsperWorks that (i) you have full power and authority to enter into this TOS; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow ProsperWorks to perform its obligations and exercise its rights) in connection with the Services without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Service, and ProsperWorks’ exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (iv) you are eighteen (18) years of age or older.

Termination. You have the right to terminate your account at any time in accordance with the procedures set forth on the Site. ProsperWorks reserves the right to (i) modify or discontinue, temporarily or permanently, the Service (or any part thereof) and (ii) refuse any and all current and future use of the Service, suspend or terminate your account (any part thereof) or use of the Service and remove and discard any of Your Content in the Service, for any reason, including if ProsperWorks believes that you have violated this TOS, or if you do not accept and agree to be bound by any modification to this TOS. ProsperWorks shall not be liable to you or any third party for any modification, suspension or discontinuation of the Service. ProsperWorks will use good faith efforts to contact you to warn you prior to suspension or termination of your account by ProsperWorks. All of Your Content on the Service (if any) may be permanently deleted by ProsperWorks upon any termination of your account in its sole discretion. If ProsperWorks terminates your account without cause and you have signed up for a fee-bearing service, ProsperWorks will refund the pro-rated, unearned portion of any amount that you have prepaid to ProsperWorks for such Service. However, all accrued rights to payment and the terms of Sections 4.2 and 5-13 shall survive termination of this TOS.

DISCLAIMER OF WARRANTIES. THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND PROSPERWORKS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT PROSPERWORKS DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, OR WILL WORK WITH OR NOT INTERRUPT OR DAMAGE YOUR THIRD PARTY SERVICE OR YOUR CONTENT (INCLUDING ANY CONTENT YOU MAY STORE ON YOUR THIRD PARTY SERVICE), AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM PROSPERWORKS OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.

LIMITATION OF LIABILITY.

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL PROSPERWORKS BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION, OR (B) FOR ANY DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.

Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. TO THE EXTENT THAT THE LAWS OF SUCH JURISDICTIONS APPLY, PROSPERWORKS’ LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

Indemnification and Release. You shall defend, indemnify, and hold harmless ProsperWorks from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS, any of Your Content, or your other access, contribution to, use or misuse of the Service. ProsperWorks shall provide notice to you of any such claim, suit or demand. ProsperWorks reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting ProsperWorks’ defense of such matter. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.

Dispute Resolution By Binding Arbitration

PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.

Most user concerns can be resolved quickly and to the user’s satisfaction by emailing user support at support@prosperworks.com. In the unlikely event that our user care team is unable to resolve a complaint you may have (or if ProsperWorks has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration, mediation, or small claims court instead of in courts of general jurisdiction. Arbitration, which is often cheaper, faster and less formal than a lawsuit in court, uses a neutral arbitrator instead of a judge or jury. Arbitrators can award the same damages and relief that a court can award. Also, in any arbitration under this arbitration provision in which you seek less than $75,000 in damages, ProsperWorks will pay reasonable attorneys’ fees should you prevail. ProsperWorks will not seek attorneys’ fees from you. However, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of attorneys’ fees will be governed by the AAA Rules (as defined below). Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted.

Arbitration Agreement

ProsperWorks and you agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:

claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;

claims that arose before this or any prior agreements (including, but not limited to, claims relating to advertising);

claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and

claims that may arise after the termination of this TOS.

References to ‘ProsperWorks’, ‘you’, and ‘us’ include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or devices under this or prior agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this TOS, you and ProsperWorks are each waiving the right to a trial by jury or to participate in a class action. This TOS evidence a transaction in the interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this TOS.

A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to ProsperWorks should be addressed to ProsperWorks, Inc. c/o CT Corporation, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801 (“Arbitration Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If ProsperWorks and you do not reach an agreement to resolve the claim within sixty (60) calendar days after the Notice is received, you or ProsperWorks may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by ProsperWorks or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or ProsperWorks is entitled.

The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, ‘AAA Rules’) of the American Arbitration Association (“AAA”), as modified by this TOS, and will be administered by the AAA. The AAA Rules are available online at adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Arbitration Notice Address. The arbitrator is bound by the terms of this TOS. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of the arbitration provision. Unless ProsperWorks and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. ProsperWorks will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the AAA Rules. However, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA Rules.

The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees and expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND PROSPERWORKS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and ProsperWorks agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.

Notwithstanding any provision in this TOS to the contrary, we agree that if ProsperWorks makes any future change to this arbitration provision (other than a change to the Arbitration Notice Address) while you are a user of the Services, you may reject any such change by sending us written notice within thirty (30) calendar days of the change to the Arbitration Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.

Assignment. You may not assign this TOS without the prior written consent of ProsperWorks, but ProsperWorks may assign or transfer this TOS, in whole or in part, without restriction.

Governing Law. This TOS shall be governed by the laws of the United States and the State of California without regard to the principles of conflicts of law (except with respect to federal preemption principles). Unless otherwise elected by ProsperWorks in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts located within San Francisco County, California for the purpose of resolving any dispute relating to your access to or use of the Service not subject to arbitration, as set forth above. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.

DMCA. ProsperWorks respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify ProsperWorks of your infringement claim in accordance with the procedure set forth below.

ProsperWorks will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to ProsperWorks’ Copyright Agent at copyright@prosperworks.com (Subject line: “DMCA Takedown Request”). You may also contact us by mail or facsimile at:

ProsperWorks Copyright Agent
c/o CT Corporation
Corporation Trust Center,
1209 Orange Street
Wilmington, Delaware 19801

To be effective, the notification must be in writing and contain the following information:

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

a description of the copyrighted work or other intellectual property that you claim has been infringed;

a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;

your address, telephone number, and email address;

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

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

If you believe that Your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in Your Content, you may send a written counter-notice containing the following information to the Copyright Agent:

your physical or electronic signature;

identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;

a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and

your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Copyright Agent, ProsperWorks will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.

In accordance with the DMCA and other applicable law, ProsperWorks has adopted a policy of terminating, in appropriate circumstances and at ProsperWorks’ sole discretion, users who are deemed to be repeat infringers. ProsperWorks may also at its sole discretion limit access to the Service and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.