Article 1: Interpretation
In this Agreement, unless the context otherwise requires, the provisions in this Article 1 apply throughout.
Capitalized terms, including those used in the introduction of this Agreement, shall have the meaning as set out below:
“Article” means an article in this Agreement;
“Access Methods” means any and all IDs, passwords, API keys or any other codes that the End Users use to access the Platform.
“Advanced Protocols” means Digital Assets that are not supported by Prosper, including metacoins, colored coins, side chains, or other derivative, enhanced, or forked protocols, tokens, or coins which supplement or interact with Supported Digital Assets.
“Claim” means any third-party action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, inquiry, audit, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other governmental body or any arbitrator or arbitration panel.
“Content” means Prosper’s websites including its Platform, and any and all related content, materials and information thereon.
“Damages” means any liabilities, damages, diminution in value, payments, obligations, losses, costs and expenses, fines, security or other remediation costs, penalties (including any regulatory investigation or third-party subpoena costs, reasonable attorneys’ fees, court costs, expert witness fees, and other expenses of litigation), and judgments (at law or in equity) of any nature.
“Digital Asset” means a blockchain-based digital currency, app coin or protocol token.
“Digital Asset Wallet” means a Prosper hosted wallet for holding Supported Digital Assets on behalf of an End User.
“End User Platform Account” means an End User’s account on the Platform for its use to access the Services as set forth in this Agreement
“Fiat Currency” means a government issued currency.
“Fiat Wallet” means a Prosper hosted wallet for holding Fiat Currencies on behalf of an End User.
Indemnified Party” means the applicable party hereto and any affiliates thereof being indemnified by the other party in accordance as set forth in Article 12 (indemnification) below.
“Indemnifying Party” means the applicable party hereto indemnifying the other party and any affiliates thereof as set forth in Article 12 (indemnification) below.
“Intellectual Property Rights” means all intellectual property rights, including copyrights (auteursrechten), trademark rights (merkenrechten), patent rights (octrooirechten) and trade name rights (handelsnaamrechten), in respect of any work, including documents, designs, computer software, customized software and/or other whether or not electronically recorded information.
“Order Fees” means those commissions, fees and related costs set forth in the Prosper fee schedule and visible via the Platform.
“Platform” means Prosper’s digital currency exchange platform, including but not limited to API’s, interfaces and apps.
“Prosper Marks” means “Prosper” and any and all names, trade marks, and logos related to the Services or displayed on Prosper’s websites.
“Services” has the meaning ascribed thereto in Article 3.
“SPP” means Stichting Prosper Payments.
“Supported Digital Asset” means a Digital Asset actively supported on the Platform at Prosper’s sole discretion.
“Referral” A new user who signed up for Prosper services using a referral code.
“Affiliate” A new user who signed up for Prosper services using an affiliate code.
1.2. References to persons
References to a person include any individual, company or partnership whether or not having separate legal personality and wherever incorporated or registered.
1.3. Headings and references to Articles, Schedules and Paragraphs
Headings have been inserted for convenience of reference only and do not affect the interpretation of any of the provisions of this Agreement.
1.4. Other references
Whenever used in this Agreement the words "include", "includes" and "including" shall be deemed to be followed by the phrase "without limitation".
The words “as of” shall be deemed to include the day or moment in time specified thereafter.
Any reference in this Agreement to any gender shall include all genders, and words importing the singular shall include the plural and vice versa.
Article 2: Account
2.1. To use the Service, You must register for an Account at the Prosper Platform by providing the information requested upon registration. By using the Account, you warrant that you will use the Service only for Yourself, and not on behalf of a third party. You are fully responsible for all activity on the Platform by use of Your Account.
2.2. Before You can use the Service, Prosper will verify Your identity. The authentication process consists of uploading a copy of Your passport or legal identification document to the Service, upon which Prosper will verify the authenticity of such document. Prosper may at its sole discretion require additional documents from You.
2.3. Prosper may at its sole discretion, and without being required to state reasons for doing so, refuse to accept your authentication, or refuse to accept Your Account.
Article 3: Services
3.3. Order Restrictions
Prosper may, in its sole discretion: (i) halt or suspend trading on the Platform, (ii) halt or suspend trading of any Digital Assets or Fiat Currency, or (iii) halt or suspend trading on the Platform by one or more End Users. Further, Prosper may impose, in its sole discretion, limits on the amount or size of orders placed or transactions executed by You. In each instance referenced in this Article, Prosper shall use reasonable efforts to provide You with as much prior notice as practicable.
3.4. Wallet Services
As part of the Services, You shall have access to Your balance on (i) Digital Asset Wallets, and (ii) Fiat Wallets via the Platform.
i) Digital Asset Wallets. Digital Asset Wallets allow You to place Orders on the Platform. Prosper will process the Order in accordance with instructions received from You. You must verify all transaction information prior to submitting transfer instructions to Prosper.
Pending Transfers. Once an Order is submitted to Prosper, it will be in pending state until Prosper confirms it is completed. Funds associated with pending transactions will not be included in Your balance on End User Platform Account. Funds in a pending state are not available for conducting transactions.
Settlement of Transfers. Prosper will settle an Order only after it is confirmed to it that, as the case may be, i) the public ledger for the applicable Digital Asset network reflects such transfer in a certain number of consecutive blocks on the public blockchain for the applicable Supported Digital Asset or ii) the relevant third party exchange has confirmed to Prosper that it has reflected such transfer of the applicable Supported Digital Asset in its internal ledger. In case of i), such numbers will be determined by Prosper at its sole discretion.
No Reversals. After an Order is broadcast to the network, Prosper cannot reverse the transfer. Prosper assumes no liability for Orders sent with improper instructions.
Digital Asset Balances. Prosper treats all of Your Supported Digital Assets as custodial assets held for Your benefit. Prosper does not consider any of Your Digital Assets in its Digital Assets Wallet to be the property of, or loaned to, Prosper. Prosper does not represent or treat assets in Your Digital Assets Wallets as Prosper assets on its balance sheet. Except as required by a valid court order, or Article 8 (term, termination and suspension) of this Agreement, Prosper will not sell, transfer, loan, retain or otherwise encumber Digital Assets in Your Digital Assets Wallet unless instructed by You.
ii) Fiat Wallets. Your Fiat Wallets are used to fund trading on the Platform. Fiat Wallets may be funded by transferring Fiat currency from a linked bank account. Prosper will credit the appropriate Fiat Wallet with transferred funds only after the funds are received by Prosper. You may withdraw funds from Your Fiat Wallet(s) at any time by initiating a withdrawal.
Balances. EUR balances in Prosper’s Fiat Wallet(s) are held in an omnibus custodial account for Your benefit through SPP.
3.5. Support of Digital Assets
Prosper maintains the Supported Digital Assets and its Digital Asset Wallets on an omnibus basis within one or more Digital Assets addresses and relies upon an internal ledger to indicate the amount of each Digital Assets that it holds for each End User.
Prosper does not own or control the underlying software protocols that govern the operation of Supported Digital Assets. In general, the underlying protocols are open source, and anyone can use, copy, modify, and distribute them. Prosper is not responsible for operation of the underlying protocols and Prosper makes no guarantee of their functionality, security, or availability. The underlying protocols are subject to sudden changes in operating rules (i.e., forks), and such forks may materially affect the value, function, and/or even the name of the Supported Digital Assets stored in a End User Platform Account. In the event of a fork, Prosper may temporarily suspend Prosper operations, including the Platform, with or without advance notice, and Prosper may, in its sole discretion, decide whether or not to support (or cease supporting) either branch of the forked protocol entirely. End User acknowledges and agrees that Prosper assumes no responsibility or liability whatsoever with respect to an unsupported branch of a forked protocol.
Under no circumstances can Prosper be held responsible or liable if You use its Digital Asset Wallets to store, send, request, or receive digital assets other than through an Order or that are not Supported Digital Assets. Prosper assumes no responsibility or liability in connection with any attempt to use the Services for digital assets that Prosper does not support.
In the event Prosper determines in its sole discretion to support a forked Digital Asset or an Advanced Protocol, such forked Digital Asset or Advanced Protocol will become a part of the definition of Supported Digital Assets. Support for an additional Digital Asset does not necessarily mean that such Digital Asset will be available for trading on the Platform.
Prosper is allowed to deploy third parties to carry out its obligations under the Agreement. The applicability of section 7:404 of the Dutch Civil Code is explicitly excluded.
3.7. Referral program and Affiliate program
Prosper account holders are eligible to refer people under the program by using their personal referral code. The referral code can be found in on the Prosper platform.
The referral program consists of several layers, where the first layer consists of people referred by you directly (e.g. people who used your referral code). The second and next layers are indirect referrals, e.g. referred by your referrals.
You can refer an infinite amount of people, as long as the people you refer;
Are brand new Prosper customers (register a new account); and
Are eligible for a Prosper account (must be a resident of a country where Prosper operates);
You will receive a referral fee for each direct (and indirect) successfully onboarded referral. A successfully onboarded referral is someone who;
Successfully signed up for a Prosper account using your referral code (first layer) and/or a referral code from someone you referred (second and subsequent layers);
Performs at least one trade in cryptocurrency;
Your referral fee consists of a percentage visible on the Prosper platform and consists of the revenue of all trading volume of the users you directly or indirectly onboard in all layers for a period of which the duration can be found in the Prosper app. Trading volume relates to the transactions made to buy or sell cryptocurrency and do not include transactions to or from fiat wallet(s).
The applicable referral percentage is visible in your personal referral statistics in the Prosper platform. Any wrongfully received referral fees may be corrected by Prosper. We may, at our sole discretion, make changes to the referral percentage and/or duration.
The duration period starts on the day the first time your referral code has been used to register.
Referral fees shall be automatically added to your fiat wallet on your Prosper account on a daily basis.
If you think you are owed a referral fee that has not yet been granted then please reach out to our customer support so that we can help
Please note that if you delete your account and sign up for a new one, you will lose all your referrals and fees accumulated. Additionally, you do not have a claim on any referral fees accumulated or generated after your account has been deleted (by you), suspended or terminated.
Article 4: Fees
4.1. You acknowledge and agree that the You will pay Prosper the following fees:
Trade Fees. In case of an Order, Prosper shall deduct i) any applicable third party fees, ii) Prosper’s fee for handling the Order. The Trade Fee is deducted directly from the amount You wish to trade at the time the order is completed.
Payment Fees. Payment Fees apply in case of incoming and outgoing Fiat transactions initiated by You, and are charged by Prosper to cover its bank fees and costs. The Payment Fees are invoiced by Prosper to the End User. The Payment Fees are deducted from the incoming and outgoing Fiat transactions.
Subscription Fees. Prosper shall deduct a recurring subscription fee from the End User's Fiat Wallet in the form of a Subscription Fee. Then End User is responsible for maintaining sufficient Fiat Balance in their Fiat Wallet. If the Fiat Balance has become insufficient Prosper may deduct the amount from the End User's Digital Asset Wallet(s).
Article 5: End user responsibilities
5.1. You expressly authorize Prosper to, directly or through third parties, make inquiries Prosper considers reasonably necessary to verify account information or to prevent fraudulent or illegal activities. You further authorize any third parties identified by Prosper to collect or provide information responsive to such inquiries or requests.
5.2. You represent, warrant and undertake on a continuous basis that it shall comply with all applicable anti-bribery and anti-money laundering laws, rules, and regulations of the United States, European Union or any member state and any other similar laws in all applicable jurisdictions.
5.4. Prosper may suspend access to You or to any Access Methods if Prosper reasonably determines such suspension is necessary to protect Prosper, the End User, other End Users, the Platform, other Prosper systems, any digital asset network or any third party. In such an event, Prosper agrees to provide notice to You as soon as practical following such determination and, if relevant, provide the End User with an opportunity to reinstate You and/or Access Method.
5.5. You do not use Your Account to attempt to receive, request, send, store, or engage in any other type of transaction involving any Advanced Protocols.
Article 6: Warranties
6.1. You acknowledge and warrant the following:
Your activities and utilization of the Services shall be in compliance with all applicable laws and regulations.
Your use of the Services is limited to activities disclosed during the onboarding process. You will notify Prosper as soon as possible in the event You intend to use the Services in connection with any (business) activities not disclosed in the onboarding process. Prosper may, in its sole discretion, prohibit You from using the Services in connection with any new (business) activities not previously disclosed.
You shall not engage in any of the following activities with Your use of the Services:
Activity that would violate, or assist in violation of, any law, statute, ordinance, or regulation, sanctions programs administered in the countries where Prosper conducts business, including but not limited to the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC), or which would involve proceeds of any unlawful activity;
publish, distribute or disseminate any unlawful material or information;
Actions that impose an unreasonable or disproportionately large load on Prosper’s infrastructure, or detrimentally interfere with, intercept, or expropriate any system, data, or information;
transmit or upload any material to Prosper systems that contains viruses, trojan horses, worms, or any other harmful or deleterious programs;
attempt to gain unauthorized access to Prosper systems, other Prosper Accounts, computer systems or networks connected to Prosper systems, Prosper Site, through password mining or any other means;
transfer the End User’s account access or rights to the End User’s account to a third party, unless by operation of law or with the express permission of Prosper; and
Activity which operates to defraud Prosper or any other person or entity.
You have appropriate expertise and knowledge necessary and warrant that You have the appropriate training, sophistication, expertise and knowledge to make informed decisions regarding the trading in Digital Assets and use of the Services.
You are solely responsible for determining whether, and to what extent, any taxes apply for any transactions it conducts through the Services, and to withhold, collect, report and remit the correct amounts of taxes to the appropriate tax authorities.
Article 7: Terms
Article 8: Term, termination and suspension
we reasonably believe that we need to do so in order to protect our reputation;
we are, in our reasonable opinion, required to do so by applicable law, regulation or any court or other authority to which we are subject in any jurisdiction;
we reasonably suspect you of acting in breach of this Agreement;
we have concerns that a transaction is erroneous or about the security of your Account or we suspect the Service is being used in a fraudulent or unauthorized manner;
we suspect money laundering, terrorist financing, fraud, or any other financial crime;
use of your Account is subject to any pending litigation, investigation, or government proceeding and / or we perceive a heightened risk of legal or regulatory non-compliance associated with your Account activity; and / or
You take any action that may circumvent our controls such as opening multiple Accounts or abusing promotions which we may offer from time to time.
8.4. Suspension or Restriction of Access. Prosper may: (a) suspend, restrict, or terminate the End User’s access to any or all of the Services, and/or (b) deactivate or cancel the End User’s Platform Account if:
required by a facially valid subpoena, court order, or binding order of a government authority;
access to the Services and/or use of the Platform Account is subject to any pending litigation, investigation, or government proceeding and/or Prosper perceives a heightened risk of legal regulatory non-compliance associated with Platform Account activity;
The End User attempts to circumvent Prosper’s controls or uses the Services in a manner Prosper otherwise deems inappropriate or potentially harmful to itself or third parties.
8.5. Prosper will notify the End User of any relevant action taken under this Article and give the End User reasonable opportunity to cure the cause unless Prosper reasonably determines that such cause cannot be cured to Prosper’s satisfaction.
8.6. The End User acknowledges that Prosper’s decision to take certain actions, including limiting access to, suspending, or closing the End User’s account, may be based on confidential criteria that are essential to Prosper’s risk management and security practices. The End User agrees that Prosper is under no obligation to disclose the details of its risk management and security practices to the End User.
Article 9: Intellectual property and ownership; Use of marks
9.1. All of Prosper’s Intellectual Property Rights shall remain vested in Prosper Digital Assets B.V. or in the third party from whom Prosper has obtained the right to make the work available to the End User. The Intellectual Property Rights as regards to any work will not be transferred to the End User in any manner at all. If Prosper grants a right of use to the End User, this shall be a non-exclusive, non-transferable and non-sub licensable right of use.
Article 10: Data protection
Prosper may process personal data of the End User or related persons if required for the execution of the Services, or for complying with its legal obligations. Reference is made to Prosper’s privacy statement, available at here. Prosper is allowed to make reasonable changes to its privacy statement and End User warrants that it will regularly check the privacy statement for any updates.
Article 11: Confidentiality
Article 12: Indemnification
The End User agrees to defend and indemnify and hold harmless Prosper and its affiliates from and against any and all Claims and Damages, sought by third-parties, resulting from, in connection with, or arising out of End User’s use of the Services, except to the extent caused by Prosper’s gross negligence (bewuste roekeloosheid) or willful misconduct (opzet).
Article 13: Limitation of liability
13.1. Prosper accepts an obligation to compensate direct Damages or loss insofar as stipulated in this Article. Prosper 's total, cumulative liability in respect of the End User for direct Damage or loss (directe schade) shall be limited to a) an amount equal to the amount on End Users balance, or b) €10,000 if this latter amount is lower. Prosper shall not be liable for any lost profits or any special, incidental, indirect, intangible, or consequential damages, whether based in contract, tort, negligence, strict liability, or otherwise, arising out of or in connection with authorized or unauthorized use of the Platform or the Service, or this agreement, even if an authorized representative of Prosper has been advised of or knew or should have known of the possibility of such damages. This means, by way of example only (and without limiting the scope of the preceding sentence), that if you claim that Prosper failed to process a buy or sale transaction properly, your damages are limited to no more than the value of the supported Digital Currency at issue in the transaction at the time of the transaction, and that you may not recover for lost profits, lost business opportunities, or other types of special, incidental, indirect, intangible, or consequential damages in excess of the value of the supported digital currency at issue in the transaction some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages so the above limitations may not apply to you. In this regard, a series of mutually related events that cause damage or loss shall be considered as one event and one fact causing the damage or loss.
13.2. Without prejudice to Article 13.1, the End User acknowledges and accepts that the Services are provided on an ‘as is’ and ‘as available’ basis and that access to the Platform will not be continuous, uninterrupted, timely or error-free. Prosper, nor its group companies, officers, directors, agents, employees or representatives, shall be liable for any indirect Damage or loss (indirecte schade), including, without limitation, loss of profit, loss of data, claims from third parties, fines, penalties or additional tax demands (naheffingen), lost income or lost savings, reputational damage or damage to one's image, or any other indirect damage or loss or consequential damage (gevolgschade) or loss resulting from or in connection with any failure by Prosper to comply with an obligation or in connection with any unlawful act.
13.3. Prosper is not a bank, investment firm, or broker dealer. The treatment of Supported Digital Assets or Fiat Currencies held through the Digital Asset Wallets or the Fiat Wallets respectively is uncertain if Prosper becomes insolvent.
Article 14: Governing law and competent court
Article 15: Miscellaneous
15.2. Modification. Notwithstanding any provision in this User Agreement to the contrary, we agree that if Prosper makes any future material change to this Agreement, it will notify you. Your continued use of the Prosper Services, including the acceptance of products and services offered on the Prosper Platform following the posting of changes to this Agreement constitutes your acceptance of any such changes.