Xebec Website Terms of Service
Updated July 16, 2018
Xebec’s Site permits Accredited Investors (as defined below) and certain other persons to independently explore Xebec and its real estate investment opportunities. These Terms of Service govern your access and use of the Site and all content and services provided through the Site (collectively, the “Services”). Please read these Terms of Service carefully before using the Service on the Site. If you violate any of these Terms of Service, or otherwise violate an agreement between you and us, Xebec may terminate your membership on the Site, delete your user profile and any content or other information that you have provided Xebec through the Site and/or prohibit you from using or accessing the Service or the Site (or any portion, aspect or feature of the Service or the Site), at any time in its sole discretion, with or without notice. You agree that Xebec will not be liable to you or any third party for any termination of your access and membership to the Site.
In addition to these Terms of Service, you may enter into other agreements with us that will govern your use of the Services. If there is any contradiction between these Terms of Service and another agreement you enter into applicable to specific aspects of the Services, the other agreement shall take precedence in relation to the specific aspects of the Services to which it applies. As used herein, “Users” means anyone who accesses and/or uses the Site.
Changes to These Terms of Service
This Site is intended solely for Users who are eighteen (18) years of age or older, and any registration by, use of, or access to the Site by anyone under 18 is unauthorized, unlicensed and in violation of these Terms of Service. By using the Service or the Site, you represent and warrant that you are 18 or older and that you agree to and abide by all of the terms and conditions of these Terms of Service. If you are entering into these Terms of Service on behalf of an entity or a third-party, you represent and warrant that you have the legal authority to bind that person or entity to these Terms of Service (in which case “you” and “your” in these Terms of Service, except for this sentence, refer to that entity or third-person).
The portion of our Service (and certain pages of the Site) that relate to the viewing of Xebec related investment opportunities or to making such investments are available only to certain qualified, registered and authorized users. Such portions of our Service and the Site may thus not be available in all jurisdictions or to all Users.
Only “accredited investors” as defined in Rule 501 of Regulation D of the Securities Act of 1933, as amended (the “Securities Act”), with a valid User ID and password, are authorized to access such services and web pages relating to Xebec real estate investment offerings conducted under Regulation D of the Securities Act (such persons being “Accredited Investors”. In general, to qualify as an Accredited Investor, individuals must have a net worth of more than $1 million (excluding their primary residence), or gross income for each of the last two years of at least $200,000 ($300,000 jointly with their spouse) with the expectation of a similarly qualifying income during the current year. In some cases, you may be required to provide supporting documents to Xebec that provide proof that you are an Accredited Investor. Such authorization may require completion of an Accredited Investor questionnaire and satisfactory background information screening. Your failure to provide any information and documentation requested to confirm your status as an Accredited Investor will be cause for Xebec to immediately discontinue your use of the Service by preventing your access to the Site and the Service. Persons who are resident outside of the United States are allowed access to Xebec investment opportunities only if such access does not violate the laws of their country of residence. Our Services (and certain pages of the Site) that relate to the viewing of Xebec investment opportunities or to making investments in the securities offered therein may not be used by any person or entity in any jurisdiction where the provision or use thereof would be contrary to applicable laws, rules or regulations of any governmental authority or where Xebec is not authorized to provide such information or services.
Securities Offerings; No Professional Advice Provided
Private placements of securities offered on the Site have not been registered under the Securities Act of 1933, in reliance on the exemptive provisions of Section 4(2) of the Securities Act and Regulation D and Rule 506, and/or Regulation S, promulgated thereunder. Securities sold through private placements are restricted and not publicly traded, and are therefore illiquid. Neither the U.S. Securities and Exchange Commission (“SEC”) nor any state securities commission or other regulatory authority has approved, passed upon or endorsed the merits of any offering on this Site. Securities sold through private placements are not publicly traded and, therefore, are illiquid unless registered with the SEC. Additionally, securities may be subject to restrictions on resale or transfer including holding period requirements. Investing in private placements requires high risk tolerance, low liquidity need, and long-term commitments. Users must be able to afford to lose their entire investment. Xebec investment opportunities are not FDIC insured, may lose value, and there is no bank guarantee.
Investment overviews on the Site contain summaries of the purpose and principal business terms of the Xebec offered investment opportunities. Such summaries are intended for informational purposes only and do not purport to be complete, and each is qualified in its entirety by reference to the more detailed discussions contained in the investor subscription document package relating to each such investment opportunity. The information contained in the Site has been prepared by Xebec without reference to any particular User’s investment requirements or financial situation. Any decision to invest shall be based solely on your own consideration and analysis of the risks involving a particular Xebec offering and is made at your own risk. You acknowledge and agree that you are solely responsible for determining the suitability of an investment or strategy and accept the risks associated with such decisions, which include the risk of losing the entire amount of your principal strongly. Xebec strongly encourages potential investors to consult with licensed professional tax, legal and financial advisors before making any investment.
You may not become a beneficial owner of 20% or more of any issuer’s outstanding voting equity securities (an “Issuer Covered Person”) without becoming subject to certain “bad actor” disqualifying events described in Rule 506(d) (a “Disqualifying Event”). You represent that you are not subject to a Disqualifying Event and that you will promptly notify Xebec in writing should any Disqualifying Events be applicable to you. Xebec is not liable or responsible for making Rule 506(e) disclosures, nor for determining whether any Issuer Covered Person is subject to a Disqualifying Event.
By using the Site, you agree and understand that the Site contains confidential information (“Confidential Information”), much of which pertains to Xebec investment opportunities listed on our Site. Confidential Information includes all technical and non-technical data. You agree that all Confidential Information will be kept in confidence and that you will only use the Confidential Information for the purposes for which it was disclosed. To the extent applicable, you will not modify, reverse engineer, decompile, create other works from, or disassemble any such Confidential Information unless otherwise specified in writing by the disclosing party. These restrictions will not apply to Confidential Information to the extent it (a) was in the public domain at the time of disclosure, (b) became publicly available after disclosure without breach of this agreement, (c) was lawfully received from a third party without such restrictions, (d) was known to you without such restrictions prior to your access to it via our Site; (e) was independently developed by you without breach of this agreement, (f) was generally made available to third parties by Xebec without such restriction, or (g) is required by applicable law.
You agree that you are responsible for your own conduct while using the Site and Services and for any consequences thereof. You agree to use the Services only for purposes that are legal, proper and in accordance with these Terms of Services and any applicable law, rules or regulations (including without limitation the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Company Act of 1940, the Investment Advisers Act of 1940, each as amended, any applicable state “Blue Sky” laws, any other applicable United States federal or state securities laws, regulations and rules, any securities exchange or self-regulatory organization’s rules or regulations, and any applicable foreign laws). Any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities. You agree to use the Site and Service only for purposes that are legal, proper and in accordance with these Terms and any applicable law, rules or regulations. By way of example, and not as limitation, you agree that you may not:
- use the Service in any manner that could damage, disable, overburden, or impair the Services, or interfere with any other party’s use of the Services;
- attempt to gain unauthorized access to the Site, the Services, or the computer systems or networks connected to the Services through hacking, password mining or any other means;
- create user accounts by automated means or under false or fraudulent pretenses;
- utilize any data provided on the Site (including third-party provided data) for purposes other than evaluating listed Xebec investment opportunities;
- transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature;
- defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
- email or transmit any inappropriate, defamatory, infringing, obscene, or unlawful content;
- run Maillist, Listserv, or any form of auto-responder or “spam” on the Service;
- use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site, including to engage in the practices of “screen scraping,” “database scraping” or any other activity with the purpose of obtaining content or other information;
- interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services;
- download any file posted that you know, or reasonably should know, cannot be legally distributed in such manner;
- impersonate another person or entity;
- remove any copyright, trademark or other proprietary rights notices contained in or on the Service;
- use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Service or collect information about its Users for any unauthorized purpose;
- use the Services for any illegal or unauthorized purpose (including, without limitation, in violation of any United States federal and state securities or blue sky laws or regulations, securities exchange or self-regulatory organization’s rules or regulations, or equivalent laws or regulations in foreign jurisdictions);
- share or disclose with anyone any information obtained through the Services about any Xebec investment offerings unless such person is a registered User of the Site; or use the Services for any commercial purpose whatsoever other than for your personal use.
Registration Data; Account Security
In consideration of your use of the Site, you agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Site, (b) maintain the security of your password and identification, (c) maintain and promptly update the registration data, and any other information you provide to us, to keep it accurate, current and complete, and (d) be fully responsible for all use of your account and for any actions that take place using your account. You agree to (a) immediately notify Xebec of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the service. Xebec will not be liable for any loss or damage arising from your failure to comply with this Section.
Proprietary Rights in Site Content; Limited License
All content on the Site, including but not limited to designs, text, graphics, pictures, video, information, software, music, sound and other files, and their selection and arrangement (the “Site Content”), are our proprietary property with all rights reserved. No Site Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without our prior written permission, except that, if you are eligible for use of the Site, you are granted a limited license to access and use the Site and to download or print a copy of any portion of the Site Content solely for your personal non-commercial use only, provided that you keep such portions confidential and all copyright or other proprietary notices intact. You may not share, disclose, transmit, display, reproduce, publish, license, Site Content in any other way, including on any internet, intranet or extranet site or incorporate the information in any other database or compilation, and any other use of the Site Content is strictly prohibited. Any use of the Site or the Site Content other than as specifically authorized herein, without the prior written permission of the Xebec, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms of Service shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable by us at any time without notice and with or without cause.
Consent to Electronic Transactions and Disclosures
Because Xebec provides much of its information to its Users via the Internet, it is necessary for you to consent to transact business with us online and electronically. Before you decide to do business electronically with Xebec, you must satisfy the following computer hardware and software requirements: access to the Internet; an email account and related software capable of receiving email through the Internet; a web browser which is SSL-compliant and supports secure sessions, such as Internet Explorer 5.0 or above and Netscape Navigator 6.0 or above, or the equivalent software; and hardware capable of running this software.
Xebec generally receives all payments, and is striving to make all disbursements, through electronic funds transfers (ACH transfers) using the bank (or other financial institution) account information you provide to us. You authorize such bank or other financial account to pay any amounts described herein, and authorize Xebec to make any and all investment disbursements, to such account. You agree to provide Xebec updated information regarding your bank or other account upon Xebec’s request and at any time that the information earlier provided is no longer valid.
As part of doing business with Xebec, you must also consent to our giving you certain disclosures electronically, either via our Site or to the email address you provide to us. By agreeing to the Terms of Service, you agree to receive electronically all documents, communications, notices, contracts, and agreements, including any IRS Form 1099 or other tax forms, schedules or information statements, arising from or relating to your registration as an investor on our Site, any investments you may make, your use of this Service, and the servicing of any investment you may make (each, a “Disclosure”), from Xebec, or any service provider either of us may use. An IRS Form 1099 refers to any Form 1099 or other Form, Schedule or information statement, including corrections of such documents, required to be provided pursuant to the U.S. Internal Revenue Service rules and regulations and that may be provided electronically (each, an “IRS Form 1099”). The decision to do business with Xebec electronically is yours. This document informs you of your rights concerning Disclosures.
Your consent to receive Disclosures and transact business electronically, and our agreement to do so, applies to any transactions to which such Disclosures relate. Your consent will remain in effect for so long as you are a User and, if you are no longer a User, will continue until such a time as all Disclosures relevant to transactions that occurred while you were a User have been made.
You may not withdraw such consent as long as you have outstanding any investments made through the Site. If you have no outstanding investments made through the site and wish to withdraw consent to doing business electronically, we will terminate your registered user account with us.
You also expressly consent to receiving calls and messages, including auto-dialed and pre-recorded message calls, and SMS messages (including text messages) from us, our affiliates, marketing partners, agents and others calling at their request or on their behalf, at any telephone numbers that you have provided or may provide in the future (including any cellular telephone numbers). Your cellular or mobile telephone provider will charge you according to the type of plan you carry.
If you are accessing our site and the Disclosures electronically via a mobile device (such as a smart phone, tablet, and the like), in addition to the above requirements you must make sure that you have software on your mobile device that allows you to print and save the Disclosures presented to you during the application process. These applications can be found for most mobile devices in the device’s respective “app store.” If you do not have these capabilities on your mobile device, please access our site through a device that provides these capabilities.
Digital Millennium Copyright Act Compliance
If you are a copyright owner or an agent thereof, and you believe that any content hosted on the Services infringes your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing Xebec’s Designated Copyright Agent, its Chief Compliance Officer, with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Services are covered by a single notification, a representative list of such works;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity, and information reasonably sufficient to permit Xebec to locate the material;
- Information reasonably sufficient to permit Xebec to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Pursuant to Section 512(c)(2) of the Copyright Act, Xebec designates the following agent to receive notifications of claimed infringement: Xebec Holdings, LLC: 2100 Ross Avenue, Suite 895, Dallas, TX 75201, Attention: DCA-Chief Compliance Officer. For the avoidance of doubt, only DMCA notices should go to Xebec’s Designated Copyright Agent. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid.
You must keep us informed of any change in your e-mail address, your home mailing address, or your telephone number so that we can maintain communications with you about your authorization as a registered User and so that you can continue to receive all Disclosures in a timely fashion. You can contact us by e-mail firstname.lastname@example.org, by calling us at 469.687.3184 or reaching out to us via the “Contact” link at the top of our Site.
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. XEBEC EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
Xebec does not guarantee the accuracy of any Third-Party Content. Xebec cannot guarantee and does not promise any specific results (relating to investments or otherwise) from use of the Site and/or the Service. Xebec reserves the right, in its sole discretion, to block or otherwise discontinue your access and use of the Services at any time and for any or no reason and without any liability. You agree that Xebec will not be liable to you or to any third party for any such modification, suspension or discontinuance. Upon termination of these Terms of Service or your access to the Site for any reason or no reason, you will continue to be bound by these Terms of Service which, by their nature, should survive termination, including without limitation ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
The Site and the Service may be temporarily unavailable from time to time for maintenance or other reasons. Xebec assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, User communications. Xebec is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or on the Site or combination thereof, including injury or damage to Users or to any other person’s computer related to or resulting from participating or downloading materials in connection with the Web and/or in connection with the Service.
Xebec reserves the right, in its sole discretion, to change, delete, improve or correct any and all content, materials and descriptions contained in the Site and any Services offered through the Site at any time without notice, including for maintenance, upgrades, improvements or corrections. The information and materials on the Site may contain typographical errors or inaccuracies. Any dated information is published as of its date only, and Xebec does not undertake any obligation or responsibility to update or amend any such information. You agree that Xebec and affiliates will not be liable to you or to any third party for any such modification, suspension or discontinuance.
Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier, strategic partner or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by Xebec.
Limitation on Liability
EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED AND EXCEPT AS MAY BE REQUIRED BY APPLICABLE SECURITIES LAWS, IN NO EVENT WILL XEBEC OR ITS DIRECTORS, OFFICERS, STOCKHOLDERS, PARTNERS, EMPLOYEES OR REPRESENTATIVES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SITE OR THE SERVICE OR ANY OF THE SITE CONTENT OR OTHER MATERIALS ON OR ACCESSED THROUGH THE SITE, EVEN IF XEBEC IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, EXCEPT AS MAY BE REQUIRED BY APPLICABLE SECURITIES LAW OR OTHER LAWS, YOU SHALL BE LIMITED TO INJUNCTIVE RELIEF ONLY, AND SHALL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM ANY OF XEBEC OR ITS DIRECTORS, OFFICERS, STOCKHOLDERS, PARTNERS, EMPLOYEES OR REPRESENTATIVES, REGARDLESS OF THE CAUSE OF ACTION.
CERTAIN FEDERAL AND STATE LAWS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES OR LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
Governing Law; Arbitration
By visiting or using the Site and/or the Service, you agree that the Terms of Service, including its existence, validity, construction and operating effect, and the rights of you and Xebec in relation thereto, will be governed by and construed and enforced in accordance with the laws of the State of Delaware, without regard to any principles of conflict of laws that would require or permit the application of the laws of another jurisdiction. The Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Terms of Service. By agreeing to the Terms and using the Site and the Service, you agree to submit to personal jurisdiction in Texas for all purposes, and you agree to waive, to maximum extent permitted by law, any right to a trial by jury for any matter. Unless otherwise agreed in writing by you and us, any controversy, claim, action, or dispute arising out of or relating to this Terms of Service, or any alleged breach thereof shall be resolved solely and exclusively by a binding arbitration process administered by JAMS. The arbitration hearing shall take place in Dallas, Texas and conducted in accordance with the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time arbitration is initiated, with the following exceptions if in conflict: (a) one arbitrator who is a retired judge shall be agreed to by the parties, or if the parties cannot agree, then each side shall submit a list of three names, and the arbitrator shall be chosen by JAMS; and (b) each party to the arbitration will pay one-half of the expenses and fees of the arbitrator, together with other expenses of the arbitration incurred or approved by the arbitrator. The arbitrator shall award to the prevailing party, if any, its costs, expenses, expert witness fees, arbitration fees paid, and attorneys’ fees reasonably incurred in connection with the arbitration. Such arbitration must be commenced within one (1) year after the claim or cause of action arises. Notwithstanding the foregoing, either Xebec or you may apply to any court of competent jurisdiction for injunctive relief without breach of this arbitration provision.
You agree to indemnify and hold Xebec and each of its directors, officers, agents, contractors, employees and representatives, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney’s fees, arising out of or in connection with your use of the Service or the Site, or any violation of these Terms of Service. 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.
Investor Members: Securities Matters
Notwithstanding anything to the contrary in these Terms of Service, in no event shall anything in these Terms of Service be deemed to be a waiver, and we will not assert there has been a waiver, that would be permissible under Section 14 of the Securities Act of 1933, Section 29(a) of the Securities Exchange Act of 1934, or any other applicable provision of federal and state securities laws.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Site or the Service (“Submissions”), provided by you to Xebec are non-confidential and shall become the sole property of Xebec. Xebec shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgement or compensation to you.
The failure of Xebec to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision in that or any other instance. If any provision of these Terms of Service is held invalid, the remainder of these Terms of Service shall continue in full force and effect. If any provision of these Terms of Service shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Service and shall not affect the validity and enforceability of any remaining provisions.
Please contact Xebec with any questions or comments you may have about these Terms of Service by utilizing the “Contact” link at the top of our Site or by emailing us at email@example.com