These Terms of Use constitute a legally binding agreement between Xebec Holdings, LLC and its affiliates (together, “Xebec,” “our,” “us,” “we” or “company”) and you, the user of https://www.xebecrealty.com, including any subdomain thereof (the “Site”). By accessing the Site, you acknowledge that you have read and agree to these Terms of Use. These Terms of Use govern your use of the Site. Please read these Terms of Use carefully. If you do not agree with any of the terms and conditions contained herein, please do not access the Site.

Xebec reserves the right to amend these Terms of Use in its sole discretion. Xebec will post any changes to these Terms of Use on the Site, and changes are effective immediately upon posting. Your continued use of the Site after any such changes constitutes your acceptance of the new terms and conditions. You should consult the “Terms of Use” link on the Site each time you visit the Site.

The Site is offered and available to users who are 18 years of age or older. By using the Site, you represent and warrant that you are of legal age to form a binding contract with Xebec. If you do not meet all of these requirements, you must not access or use the Site.

Purpose of the Site; Not Investment Advice; No Recommendations

The information presented on or through the Site is made available solely for informational purposes in relation to Xebec and its current and potential real estate investments. Xebec does not warrant the accuracy, completeness or usefulness of any information on the Site. Any reliance you place on such information is strictly at your own risk. Xebec disclaims all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Site, or by anyone who may be informed of any of its contents.

The Site is not intended to provide legal, business, tax, accounting, investment or other advice. You agree not to construe any of the Content (as defined below) provided in connection with the Site as legal, business, tax, accounting, investment, financial or other advice. You agree that the Content provided in connection with the Site does not, and shall not be deemed to, constitute an offer to sell, or a solicitation to any person to buy, any security or similar investment. You understand that none of the Content constitutes a recommendation that you or any other person purchase, sell or hold any security, company, investment product or similar investment, or that you should pursue any investment strategy, and the Content is not to be relied upon for the purpose of making investment or other decisions. In addition, you understand and agree that all Content provided in connection with the Site is published without consideration of your individual circumstances, financial or otherwise. Accordingly, you agree that you are solely responsible for any investment decisions or other determinations made, including the evaluation of any investment or other risks, with respect to any of the Content provided in connection with the Site. You agree to consult your own professional advisors as to any legal, business, tax, accounting, investment, financial or other advice regarding any Content provided in connection with the Site.

Regulatory Disclosures

Xebec does not solicit or make its services available to the public. The Content provided on or through the Site may include information regarding past and/or present investments managed by Xebec, its affiliates and/or its personnel. It should not be assumed that investments made in the future will be comparable in quality or performance to the investments described herein. Further, references to past and present investments should not be construed as a recommendation of any particular investment or security. Current and previous investments listed on the Site are not to be considered a complete list of all investments historically made by Xebec. The investments listed should not be assumed to have been profitable. Any past performance information on the Site is not necessarily indicative, or a guarantee, of future results.

Certain information contained on the Site constitutes “forward-looking statements.” All forward-looking statements represent only the intent and belief of Xebec as of the date such statements were made. None of Xebec or any of its affiliates (i) assumes any responsibility for the accuracy and completeness of any forward-looking statements or (ii) undertakes any obligation to disseminate any updates or revisions to any forward-looking statement contained on the Site to reflect any change in their expectation with regard thereto or any change in events, conditions or circumstances on which any such statement is based. Due to various risks and uncertainties, actual events or results may differ materially from those reflected or contemplated in such forward-looking statements.

Xebec is registered with the U.S. Securities and Exchange Commission as an investment adviser, which does not imply a certain level or skill or training.

Securities Offerings

Private placements of securities offered on the Site have not been registered under the Securities Act of 1933, in reliance on certain exemptive provisions thereunder, including (as applicable) Regulation D and Rule 506, and/or Regulation S. 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 are expected to 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 individuals 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 investment. 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”) if you or certain beneficial owners are or have been subject to certain “bad actor” disqualifying events described in Rule 506(d) (a “Disqualifying Event”). You represent that you and any beneficial owners are not subject to a Disqualifying Event and that you and any beneficial owners will promptly notify Xebec in writing should any Disqualifying Events become applicable. Xebec is not liable or responsible for making Rule 506(e) disclosures.

Privacy Policies

In addition to these Terms of Use, your use of and access to the Site is also subject to our Website Privacy Policy (the “Privacy Policy”), and our California Website Privacy Policy supplement (the “California Privacy Policy”), which are incorporated by reference herein, as applicable. Our Privacy Policy, and our California Privacy Policy contain additional terms relating to our potential collection, use and disclosure of your personal information, as applicable. You agree that you have read, agreed to and understand our Privacy Policy, and our California Privacy Policy, as applicable.

User Accounts

If you choose, or are provided with, a user name, password or any other piece of information as part of Xebec’s security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Site or portions of it using your user name, password or other security information. You agree to notify Xebec immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

Xebec has the right to disable any user at any time in Xebec’s sole discretion for any or no reason, including if, in Xebec’s opinion, such user has violated any provision of these Terms of Use.

Consent to Electronic Transactions and Disclosures

Because Xebec provides much of its information 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 Use, 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 Site, and the servicing of any investment you may make (each, a “Disclosure”), from Xebec, or any service provider either of us may use. A IRS Form 1099 refers to any 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.

Prohibited Conduct

You agree that you are responsible for your own conduct while using the Site and for any consequences thereof. You agree to use the Site only for purposes that are legal, proper and in accordance with these Terms of Use 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 only for purposes that are legal, proper and in accordance with these Terms of Use and any applicable law, rules or regulations. By way of example, and not as limitation, you agree that you may not:

• use the Site in any manner that could damage, disable, overburden, or impair the Site, or interfere with any other party’s use of the Site;
• attempt to gain unauthorized access to the Site or the computer systems or networks connected to the Site 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 Site;
• 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 Site or any activities conducted on the Site;
• 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 Site;
• use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Site or collect information about its Users for any unauthorized purpose;
• use the Site 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 Site about any Xebec investment offerings unless such person is a registered user of the Site; or use the Site for any commercial purpose whatsoever other than for your personal use.

Ownership

The trade names, trademarks, service marks, trade dress, logos and other indicia of source (collectively, “Marks”) found on the Site and any and all information and content available through the Site (including strategies, policies, business plans, research, concepts and other information (collectively, the “Content”)) are proprietary to Xebec or its licensors and are protected by intellectual property rights and unfair competition and other laws. You may not use any Mark or Content without the express written permission of the owner (whether Xebec or otherwise), and nothing contained in these Terms of Use or anywhere on the Site shall be construed as granting any license or right to use any Mark or Content.

Third-Party Links

From time to time, Xebec may provide links from the Site to websites operated by third parties. Xebec’s decision to do so is in no way an endorsement of these sites. Xebec does not monitor, edit or control such third-party sites and is not responsible in any way for the suitability of their content or for the quality of the products or services offered therein. Your choice to follow links to such websites is at your sole risk. When you click on a link to another website you will be leaving the Site. If you have any questions regarding a linked site, please direct them to the administrator of the relevant site. Xebec reserves the right to terminate any link at any time.

Disclaimer of Warranties

THE SITE AND CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND, TO THE MAXIMUM EXTENT PERMITTED UNDER LAW, ARE PROVIDED WITHOUT WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY XEBEC, EITHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SITE, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE. XEBEC FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SITE OR CONTENT WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE OR ERROR-FREE. YOU ACKNOWLEDGE THAT THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SITE REMAINS WITH YOU TO THE MAXIMUM EXTENT PERMITTED UNDER LAW.

Limitation of Liability

XEBEC DOES NOT ASSUME ANY LIABILITY OR RESPONSIBILITY FOR THE SITE OR THE CONTENT. TO THE FULLEST EXTENT PERMITTED BY LAW, XEBEC IS NOT LIABLE TO YOU OR ANYONE ELSE FOR ANY CLAIM OF ANY NATURE WHATSOEVER BASED ON (1) THE SITE OR THE CONTENT, INCLUDING ANY DECISION MADE OR ACTION TAKEN IN RELIANCE ON THE CONTENT OR ANY FEATURE OF THE SITE, OR (2) YOUR BREACH OF ANY PROVISION OF THESE TERMS OF USE.

UNDER NO CIRCUMSTANCES WILL XEBEC BE LIABLE FOR ANY DAMAGES OR LOSSES (INCLUDING DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, LOST REVENUES, LOST PROFITS, LOSS OF BUSINESS, LOSS OF DATA OR ANY OTHER DAMAGES OR LOSSES) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE OR YOUR USE OF ANY SERVICE OR CONTENT, REGARDLESS OF THE THEORY OF LIABILITY, WHETHER TORT (INCLUDING NEGLIGENCE OF ANY KIND), CONTRACT OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF THE DAMAGES OR IF THE DAMAGES COULD HAVE BEEN FORESEEN.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Indemnity

You agree that you will be solely responsible for, and that you will defend, indemnify and hold Xebec, its parents, subsidiaries and other affiliates and each of their respective officers, directors, agents, employees and representatives harmless from and against any and all claims, demands, liabilities, costs or expenses, including reasonable attorneys’ fees, resulting from your violation of these Terms of Use or otherwise resulting from your use of the Site. Xebec reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which it is entitled to indemnification, but you must still indemnify Xebec for all liabilities, losses or damages. You agree to provide Xebec with whatever cooperation it reasonably requests.

Limitation on Time to File Claims

Miscellaneous

You may not assign or otherwise transfer these Terms of Use or your rights or obligations under it without Xebec’s prior written consent, and any attempted assignment or other transfer in violation of this provision shall be null and void. Xebec may assign these Terms of Use or any rights under these Terms of Use without your consent and without notice. Nothing in these Terms of Use may be used to construe you and Xebec as joint venturers, co-employers, partners or agents of each other, and neither you nor Xebec has the power to obligate or bind the other in any way whatsoever. Should any term or provision hereof be deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of these Terms of Use shall nonetheless remain in full force and effect. The failure of Xebec at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time to enforce the same unless the same is waived in writing. These Terms of Use shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its conflict of law rules. The Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in these Terms of Use. Unless otherwise agreed in writing by you and us, any controversy, claim, action, or dispute arising out of or relating to these Terms of Use, 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 be 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 irrevocably consent to the jurisdiction of any state or federal court sitting in Dallas, Texas. The terms and conditions set forth in these Terms of Use and any agreements included or referred to in these Terms of Use constitute the final, complete and exclusive agreement with respect to the Site and may not be contradicted, explained or supplemented by evidence of any prior agreement, any contemporaneous oral agreement or any consistent additional terms.

Headings and captions throughout these Terms of Use are for convenience only and should not be considered part of these Terms of Use. The word “including” means “including without limitation.”

If you have any questions or concerns about these Terms of Use or any issues raised in these Terms of Use or on the Site, please contact us by emailing us at [email protected].