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HEALTHCARE PROVIDER TERMS AND CONDITIONS

These Terms and Conditions (these “Terms”) are the terms of a legal agreement (the “Agreement”) between you, individually or jointly, and/or as an agent on behalf of an entity (“you” or “Provider”) and Prosper Healthcare Lending LLC and its successors and assigns (“Company” or “Prosper”). These Terms also govern and supersede the relationship under any existing Services Agreement (the “Services Agreement,” and together with these Terms, the “Agreement”) between Company and the parties named in the Services Agreement. Without limiting the generality of the foregoing, by utilizing the websites maintained at www.prosper.com (and any subdomains thereof) (the “Site”) in connection with the Program, Provider thereby agrees to these Terms, as revised from time to time. Company and Provider are sometimes each called a “Party” and together the “Parties.” By accessing, browsing and/or using the Site and/or Program Materials, 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, regardless of whether or not you are a registered user of the Site, and that you consent to the terms and practices set forth in the Prosper Terms of Use and Electronic Consent and the Prosper Privacy Policy, and such terms are hereby incorporated herein by reference. The terms and conditions of this Agreement form an essential basis of the bargain between you and Prosper.

  1. Purpose. Provider is professional provider of healthcare services. Company has established a healthcare financing program (the “Program”) pursuant to which Company may facilitate the financing to prospective patients for qualified healthcare services. Company does not agree to act as agent or on behalf of Provider. Provider desires to participate in the Program and desires to utilize and make available the Program Materials to prospective borrowers (“Borrowers”) who purchase healthcare services from Provider for Borrower or a patient for whose healthcare services they wish to finance.
  1. Change-In-Terms.
2.1 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 on the Site periodically for changes. All changes shall be effective upon posting. Your continued use of the Site and/or Program Materials after any change to this Agreement constitutes your agreement to be bound by any such changes. 2.2 Prosper may terminate, suspend, change, or restrict access to all or any part of the Program without notice or liability.
  1. Definitions. Any capitalized term used but not defined in these Terms shall have the meaning given in the Services Agreement. The following capitalized terms shall have the following meanings:
3.1 “Lender” means Company’s bank originating partner(s) that provides Loans. 3.2 “Loan” means any financing or credit facility extended through the Services for services and goods provided to a patient of Provider. 3.3 “Services” means Company’s financial and lending support services.
  1. Company’s Responsibilities. Company’s obligations include the following:
4.1 To operate the Program in good faith, in a commercially reasonable manner and in accordance with applicable law; and 4.2 To furnish Provider with electronic brochures, QR Codes, website links and other information relating to the Program for promoting the Program to Borrowers (collectively, the “Program Materials”). The Program and/or the Program Materials may be updated from time to time by Company without notice to Provider.
  1. Provider’s Responsibilities.
5.1 Provider may refer to Company prospective Borrowers who desire to obtain an unsecured personal loan for healthcare services. Borrowers will submit requests for financing directly through Company’s web-based software application. Company will facilitate the origination of loans only to such prospective Borrowers as Company deems acceptable, at Company’s election and sole discretion. Nothing contained herein obligates Company to facilitate the making of any loans. 5.2 Provider may display the Program Materials which are distributed and approved by Company.  
  1. Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, COMPANY MAKES NO REPRESENTATIONS, WARRANTIES OR CLAIMS, EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICES, PROGRAM MATERIALS, AND ANY SOFTWARE UTILIZED IN CONNECTION THEREWITH, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
  1. Limitation of Liability. COMPANY SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LOST PROFITS, WHETHER IN CONTRACT, TORT, NEGLIGENCE, MALPRACTICE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, RESULTING FROM OR ARISING OUT OF THE AGREEMENT OR THE PERFORMANCE THEREOF, WITHOUT RESPECT TO NOTICE OF THE POSSIBILITY THEREOF. COMPANY’S AGGREGATE LIABILITY TO PROVIDER FOR ANY LOSSES, CLAIMS, BREACHES OR DAMAGES UNDER THE AGREEMENT WILL NOT EXCEED $1,000.
  1. Indemnification.
8.1 Indemnification by Provider. Provider shall indemnify, hold harmless and, at Company’s request, defend Company and its affiliates and their officers, directors, employees and agents from and against any and all Losses suffered, sustained, incurred or paid by Company in connection with, resulting from, relating to, or arising out of any of the following: (i) any breach by the Provider of any representation or warranty set forth in this Agreement; (ii) any violation of applicable law; (iii) the gross negligence or willful misconduct by the Provider in the performance of obligations under this Agreement; or (iv) any malpractice claim, suit or any other similar action. 8.2 A Party seeking indemnification under this Section 8 (the “Indemnified Party”) shall give prompt written notice to the other Party (the “Indemnifying Party”) of any claim for which it may seek indemnity. The Indemnifying Party shall defend such claim, action, suit or proceeding with counsel reasonably satisfactory to the Indemnified Party, and the Indemnified Party shall cooperate in the defense. The Indemnified Party may have separate counsel who shall be employed by the Indemnified Party at the Indemnified Party’s expense; provided, that the Indemnifying Party shall pay the reasonable attorney’s fees and expenses of such separate counsel if, in the opinion of counsel to the Indemnifying Party, the interests of the Indemnified Party and the Indemnifying Party are adverse such that separate counsel for the Indemnified Party is required. Knowledge by the Indemnified Party of any breach or non-compliance hereunder shall not constitute a waiver of the Indemnified Party’s rights and remedies under this Agreement, provided the Indemnified Party has notified the Indemnifying Party of such breach or non-compliance in a timely manner.
  1. Confidentiality.
9.1 Each Party and their respective affiliates, directors, officers, employees, authorized representatives, agents and advisors (including without limitation, attorneys, accountants, consultants, bankers and financial advisors) shall keep confidential all information concerning the other Party’s proprietary business procedures, products, services, operations, marketing materials, fees, policies or plans and all Nonpublic Personal Information of the other Party that is received or obtained during the negotiation or performance of the Agreement, whether such information is oral or written, and whether or not labeled as confidential by such Party (collectively “Confidential Information”). “Nonpublic Personal Information” shall include all personally identifiable financial information and any list, description or other grouping of consumers, and publicly available information pertaining to them, that is derived using any personally identifiable financial information that is not publicly available, and shall further include all “nonpublic personal information” as defined by federal regulations implementing the Gramm-Leach-Bliley Act, as amended from time to time. “Personally identifiable financial information” means any information a consumer provides to a Party in order to obtain a financial product or service, any information a Party otherwise obtains about a consumer in connection with providing a financial product or service to that consumer, and any information about a consumer resulting from any transaction involving a financial product or service between a Party and a consumer. Personally identifiable information may include, without limitation, a consumer’s first and last name, physical address, zip code, email address, phone number, social security number, birth date, and any other information that itself identifies or when tied to the above information, may identify a consumer. 9.2 Use of Confidential Information. For as long as Confidential Information is in possession of a Party, such Party shall take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the use, duplications or disclosure of Confidential Information, other than, by or to its employees or agents who are directly involved in negotiating or performing this Agreement and who are apprised of their obligations under this Section 9 and directed by the receiving Party to treat such information confidentially, or except as required by law or by a supervising regulatory agency of a receiving Party. Neither Party shall disclose, share, rent, sell or transfer to any third party any Confidential Information. The Parties shall use Confidential Information only as necessary to perform this Agreement. 9.3 Return of Information; Indemnity. Upon the termination or expiration of this Agreement, the receiving Party shall promptly return all Confidential Information received in connection with the transaction, or shall promptly destroy any materials containing such information (and any copies, extracts, and summaries thereof) and shall provide the disclosing Party with written confirmation of such return or destruction upon request. In the event a Party discovers that Confidential Information has been used in an unauthorized manner or disclosed in violation of this Section 9, the Party discovering the unauthorized use or disclosure shall immediately notify the other Party of such event, and the disclosing Party shall indemnify and hold the other Party harmless from all claims, damage, liability, costs and expenses (including court costs and reasonable attorneys’ fees) arising or resulting from the unauthorized use or disclosure. In addition, the non-disclosing Party shall be entitled to all other remedies available at law or equity, including injunctive relief.
  1. Ownership. The software, technology and other intellectual property and Program Materials of Company is and shall remain the sole and exclusive property of Company.
  1. Dispute Resolution.
11.1 In the event any claim, dispute or controversy between the Parties arises out of or relates to this Agreement (a “Contract Dispute”), the Parties agree that before resorting to any formal dispute resolution process as set forth in this Section 11, the Parties will first attempt to negotiate in good faith to find a mutually acceptable resolution to the Contract Dispute for at least ten (10) business days. 11.2 Arbitration. If the negotiations set forth in Section 11.1 above do not occur or do not result in mutually acceptable resolution, the Parties agree that any Contract Dispute, other than those that would be barred at law or in equity by an applicable statute of limitations, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Claims shall be heard by a single arbitrator with expertise in consumer lending mutually agreed between the Parties or, if the Parties cannot agree on an arbitrator, by an arbitrator appointed by AAA. The place of arbitration shall be San Francisco, CA. The arbitration shall be governed by the laws of the State of California. Each Party will, upon written request of the other Party, promptly provide the other with copies of all relevant documents. There shall be no other discovery allowed. The arbitration will be based on the submission of documents and there shall be no in-person or oral hearing. Any Party may seek emergency relief, including injunctive relief, from the arbitrator until the arbitration award is rendered or the Contract Dispute is otherwise resolved. If emergency relief is requested, the AAA shall expedite the matter to the arbitrator for resolution. Any Party also may, without waiving any remedy under this Agreement, seek from any court having jurisdiction, any interim or provisional relief that is necessary to protect the rights or property of that Party, including any injunctive relief, until the arbitrator is appointed, the arbitration award is rendered or the Contract Dispute is otherwise resolved. Time is of the essence for any arbitration under this Agreement and arbitration hearings shall take place within 90 days of filing and awards rendered within 120 days. The arbitrator shall agree to these limits prior to accepting appointment. The arbitrator will have no authority to award punitive or other damages not measured by the prevailing Party’s actual damages, except as may be required by statute. The arbitrator shall not award consequential damages in any arbitration initiated under this Section 11. Each Party shall bear its own costs and expenses and an equal share of the arbitrators’ and administrative fees of arbitration. The award of the arbitrator shall be accompanied by a reasoned opinion. Except as may be required by law, neither a Party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both Parties.
  1. Representations and Warranties.
12.1 Provider hereby warrants and represents to Company: (i) that it will comply with all applicable federal, state, and local laws, ordinances and regulations including, but not limited to, the Equal Credit Opportunity Act and the Health Insurance Portability and Accountability Act of 1996; (ii) that the price charged to the Patient as evidenced by the loan documentation is the same price that would be charged to the Borrower regardless of whether the Borrower pays cash for the healthcare services or utilizes the Program; (iii) that it holds all licenses required in order to conduct its business as contemplated by this Agreement; (iv) that, if the Provider is doing business in the form of a business entity, then such entity is duly organized, validly existing and in good standing under the laws of the state of its formation and is duly qualified to transact business in all states where such qualification is required; and (v) that entering into this Agreement does not violate Provider’s charter, certificate of organization, by-laws, or similar organizational documents as the case may be, nor any contract or agreement to which Provider is a party. 12.2 Provider hereby covenants to Company: (i) to use the Program Materials only as directed by the Company and for no other purpose; (ii) to not use Company’s name or logo in any written material or advertisement, without Company’s prior written approval; (iii) to timely investigate all Borrower complaints related to healthcare services and resolve any legitimate Borrower complaints in a reasonable amount of time; and (iv) that Provider has and shall continue to maintain insurance coverage of such types and in such amounts as are customary and appropriate for its healthcare practice. 12.3 Provider will provide Company with information of any change of control involving Provider, or any change in Provider’s name, business structure or form, principal office, or state of formation, before or when the change occurs. Provider information may be shared by Company with its affiliates subject to the provisions of this Agreement.
  1. Miscellaneous.


13.1 Inquiries; Feedback; Publicity. Neither Party will attempt to answer inquiries from Borrowers or prospective Borrowers concerning the other Party’s products and services. Each Party will refer inquiries concerning the other Party’s products and services to the customer service telephone numbers and/or emails provided by such other Party. Provider agrees not to issue any announcement via press release or other public communication regarding Company and/or the Program without the prior written approval of Company.


13.2 Independent Contractor. The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent. Each Party further agrees that the relationship created by this Agreement is non-exclusive.


13.3 No Waiver of Defaults. Any waiver of breach or default pursuant to this Agreement will not be a waiver of any other subsequent default. Failure or delay by either Party to enforce any term or condition of this Agreement will not constitute a waiver of such term or condition.


13.4 If any provision of the Agreement is found to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions shall in no way be affected and shall remain in full force and effect.


13.5 Governing Law. The Agreement shall be governed by and construed under the laws of the State of California without regard to conflict of laws provisions thereof.


13.6 Notices. All notices required or permitted under this Agreement must be in writing and shall be deemed effectively given: (i) upon delivery, when delivered personally against receipt therefor; (ii) upon delivery when sent by certified mail, postage prepaid and return receipt requested; (iii) upon transmission, when transmitted by email or other electronic transmission method, provided that receipt is confirmed; (iv) upon delivery, when sent by Federal Express or other nationally recognized overnight delivery service; or (v) three days after deposit if by U.S. mail, postage prepaid. Any such notice shall be sent to the Provider or to Prosper Healthcare LLC, c/o Prosper Marketplace, Inc., 221 Main Street, 3rd Floor, San Francisco, CA 94105, Attention: General Counsel, e-mail address: [email protected].


13.7 Term and Termination. This Agreement shall be in effect until terminated by either Party as set forth in this Section. Company may terminate this Agreement or the Program at any time with or without cause and without notice.


13.8 Assignment. Company may assign, voluntarily, by operation of law, or otherwise, any rights or delegate any duties under this Agreement without the prior written consent of the other Party. Any attempt to assign the Agreement other than as permitted above will be null and void. Subject to the foregoing, this Agreement shall be binding upon and shall inure to Parties and their respective successors and permitted assigns.


13.9 Entire Agreement. This Agreement, the Prosper Terms of Use and Electronic Consent and the Prosper Privacy Policy contain the entire agreement between the Parties and supersedes any prior written or oral agreement between the Parties concerning the subject matter contained herein. There are no representations, agreements, arrangements or understandings, oral or written, between or among the Parties relating to the subject matter contained in this Agreement, which are not fully expressed herein.


13.10 Consent to Doing Business Electronically. As a participant in the Program, from time to time Provider will receive disclosures, notices, documents and information (“Communications”) from Company or our respective affiliates and agents. Provider agrees that all Communications from us relating to your use of the Program may be provided or made available to it electronically by e-mail or at our website. Provider’s consent to receive Communications and do business electronically, and our agreement to do so, applies to all of Provider’s interactions and transactions through the Program.


13.11 Changes in Contact Information. Please keep us informed of any changes in Provider’s email or mailing address to continue to receive all Communications without interruption. Please contact us by email at [email protected] or by writing to us at Prosper Marketplace, Inc., 221 Main Street, Third Floor, San Francisco, CA 94105, Attn: PHL Provider Support.

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