Updated November 20, 2018
Welcome to the investor acquisition, management and engagement platform and website operated by Darwin German Real Estate Investments (the "Company,", "we," or "us"). These Terms and Conditions (this "Agreement") govern the contractual relationship between the Company and the individual person or entity ("you" or "your") who accesses, uses or registers to use the platform or website found at portal.darwingerman.com or any web address that resolves to the website, or content, service or feature available through the website (collectively, the "Website"). Therefore, PLEASE READ THIS AGREEMENT CAREFULLY, IN ITS ENTIRETY, BEFORE ACCESSING, USING OR REGISTERING TO USE THE WEBSITE.
By accessing, using or registering to use the Website: (i) you represent and warrant that you are over the age of 18 and are lawfully able to enter in and agree to the Agreement; (ii) you accept and agree to be bound by the Agreement, including as it may be updated or revised from time to time by the Company, and all other terms and policies referenced or incorporated herein by reference; and (iii) you represent and warrant that you are authorized to enter into the Agreement on behalf of any entity if you are accessing, using or registering to use the Website on behalf of that entity.
The Website is owned and operated by the Company. The Website may be protected by U.S., foreign and/or international copyright laws, trademark laws, and/or other intellectual property laws.
Use of the Website
- You understand and acknowledge that a purpose of the Website is to provide a technology platform that permits Accredited Investors (as defined below) and certain other persons to independently connect with issuers of securities relating to real estate investments.
- The Website shall not be used other than for its intended purposes, as determined in the Company's sole discretion. You are specifically prohibited from using the Website to defame, abuse, harass, bully, threaten or otherwise violate the legal rights (such as the rights of privacy and publicity) of others, and/or publish, post, distribute or disseminate any defamatory, infringing, obscene, pornographic, sexual, indecent or unlawful material or information, or engage in criminal behavior, or cause others to engage in any of the aforementioned conduct.
- Those portions of the Website that relate to current investment opportunities or to making investments in the securities offered therein are available only to certain qualified, registered and authorized users. Therefore, such portions may not be available in all jurisdictions.
- For persons resident in the United States, 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 username and password, are authorized to access certain services and web pages (such persons being referred to as "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 a reasonable expectation of a similarly qualifying income during the current year. Prior to making any investment through the Website, you will be required to provide supporting documents proving that you are an Accredited Investor. Alternatively, you may use one of our third-party verification providers. Your failure to provide any information and documentation requested to confirm your status as an Accredited Investor will be cause for us to discontinue your access to the Website.
- Persons who are resident outside of the United States are allowed access to such investment opportunities only if such access does not violate the laws of their country of residence. Those portions of the Website that relate to the viewing of actual 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 we or one of our affiliates are not authorized to provide such information or services.
Securities Offerings; No Professional Advice Provided
- The securities offered on the Website have not been registered under the Securities Act, in reliance on the exemptive provisions of Section 4(2) of the Securities Act, Rule 506(c) of Regulation D, and/or Regulation S, promulgated thereunder. Securities sold through private placements are restricted and not publicly tradeable, and are therefore illiquid. Neither the U.S. Securities and Exchange Commission nor any state securities commission or other regulatory authority has approved, passed upon or endorsed the merits of any offering on the Website.
- The Company is not a registered broker-dealer, funding portal, or investment advisor and does not conduct any activity that would require registration as such.
- Investment overviews on the Website contain summaries of the purpose and principal business terms of the 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 document package relating to such investment opportunity. The information contained in the Website has been prepared by the Company without reference to any particular investment requirements or financial situation, and potential investors should consult with their own 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) of Regulation D (a "Disqualifying Event"). You represent that you are not subject to a Disqualifying Event and that you will promptly notify us in writing should any Disqualifying Events be applicable to you. To the extent you are subject to a Disqualifying Event, we reserve the right to cancel your investment and return any funds held in escrow or otherwise paid or submitted by you. [Add hover text describing a Disqualifying Event or a link to the rule]
The Company and any other product or service name or slogan contained in the Website are trademarks of The Company or its content providers, suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of The Company or the relevant trademark owner. The look-and-feel of the various aspects of the Website constitute a service mark, trademark and/or trade dress of The Company and may not be copied, imitated or used, in whole or in part, without The Company's prior written permission.
The Website is provided on an "as is" basis. The Company makes no representation or warranty regarding the accuracy, reliability or completeness of the Website or the content of any site linked from the Website. The Company disclaims all warranties, express or implied, including, but not limited to, non-infringement, warranties of title, implied warranties of quality, performance, merchantability, fitness for a particular purpose, security and accuracy. Further, the Company does not warrant that the Website or the computer server that makes it available is free of viruses.
Updates and Errors
- The Website could contain technical inaccuracies or typographical errors. The Company may make improvements and/or changes to the Website at any time. However, the Company has no duty to update the Website, and the Company shall not be liable for any failure to update such information.
- You agree and acknowledge that the Company and each and every of its officers, directors, employees, and agents will not be liable, whether in contract, tort, strict liability or otherwise, for any indirect, punitive, special, consequential or incidental damages (including without limitation, lost profits, cost of procuring substitute service or lost opportunity) relating to, arising out of or in connection with the use of the Website or a linked site, or the delay or inability to use the Website or a linked site, even if the Company was made aware of the possibility of such damages. This limitation on liability includes, but is not limited to, the transmission of any viruses, failure of mechanical or electronic equipment or communication lines, telephone or other interconnect problems, unauthorized access, theft, operator errors, strikes or other labor problems or any force majeure. The Company cannot and does not guarantee continuous, uninterrupted or secure access to the Website.
Linked Internet Sites
- The Company prohibits caching and the framing of any content available through the Website. The Company reserves the right to disable any unauthorized links or frames and specifically disclaims any responsibility for the contents of any other Internet sites linked to the Website. Access to any other Internet sites linked to the Website is at the user's own risk.
- The Company is not responsible for, and does not adopt or otherwise incorporate by reference, any rule, regulation, privacy provision, confidentiality provision, transmission of personal data provision, or other provision from a linked Internet site that differs from those provisions provided on the Website. The Company expressly disclaims any and all liability related to any such provision set forth on a linked Internet site.
You agree to indemnify and hold the Company, its affiliates, and each of its respective directors, officers, employees, shareholders, partners and agents (collectively, the "Indemnified Parties") harmless from and against any and all claims, liability, losses, damages, costs and expenses (including reasonable legal fees) incurred by any Indemnified Party arising out of, as a result of or in connection with any breach or alleged breach by you or anyone acting on your behalf of any term set forth in the Agreement.
Registering For an Account
- To obtain access to the Website, you must apply for an account and you agree to provide complete, true and accurate information when doing so. You agree to maintain such information current and accurate and all times. The Company reserves sole discretion over whether to grant you an account, and you agree to access the authorized sections of the Website and your account only by using the account number or username and password supplied to you by the Company. You may subsequently change your username and password.
- You agree to provide banking information the Company, as well as any other information as may be necessary, for the purpose of transferring and facilitating payment.
- You are responsible for maintaining the confidentiality of your account access information. You agree to take reasonable steps to prevent others from obtaining your access information and to notify the Company of any unauthorized access or need to update or remove access for any of your employees or agents.
- If at any time you desire to terminate your relationship with, access to or use of the Website, you may cancel your account through your account page on the Website.
Your Consent to Electronic Transactions & Disclosures
- The Company or an affiliate (or a third-party servicer or escrow provider that we may retain) may receive payments, and makes all disbursements, through certified check, wire transfer or electronic funds transfers (ACH transfers) using the bank (or other financial institution) account information you provide to us. You will authorize such bank or other financial account to pay any amounts you agree to invest, and authorize the Company (or any such third-party servicer or escrow provider) to make any and all investment disbursements, to such account. You agree to provide the Company updated information regarding your bank or other account upon the Company's request and at any time that the information earlier provided is no longer valid.
- As part of doing business with the Company, you consent to our provision of certain disclosures electronically, either via our Website or to the email address you provide to us. You further agree to receiving electronically all documents, communications, notices, contracts, and agreements, including any IRS Form 1099 or other tax forms, schedules or information statements, arising from, in connection with or relating to your registration as an investor on the Website, any investments you may make, your use of the Website, and the servicing of any investment you may make (each, a "Disclosure"), from the Company or any service provider we may use. The decision to do business with the Company electronically is yours. This Agreement 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 transaction to which such Disclosures relate. Your consent will remain in effect until such time as all Disclosures relevant to all transactions in which you are involved have been made.
- You may not withdraw such consent as long as you have any outstanding investments made through the Website. If you have no outstanding investments made through the Website 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 or mobile telephone numbers). Your cellular or mobile telephone provider will charge you according to the type of plan you carry.
Confidentiality of Information
- Should you receive information from the Company or through the Website with respect to any investment activity, you may not further disclose or otherwise provide such information to another party.
- You are entrusted with any information you receive on this Website from the Company, or other investors with respect to any investment activity. You acknowledge and agree to keep such information confidential. To the extent you opt not review such confidential documents about potential investments, you acknowledge and agree that you assume the risk that such additional information may be relevant to your decision to invest in a particular investment opportunity and you knowingly accept the risks of not reviewing such information. You agree that the Company, at its sole discretion and to the extent permitted by law, may access, read, preserve and disclose your account information, usage history and submitted content in order to: (a) comply with any applicable law, regulation, legal process, or governmental request; (b) respond to claims that any such content violates the rights of third parties, including intellectual property rights; (c) enforce this Agreement and investigate potential violations thereof; (d) detect, prevent, or otherwise address fraud, security, or technical issues; (e) respond to your requests for customer service; or (f) protect the rights, property, or personal safety of the Company, users of the Website, or the public.
- By uploading, posting, blogging, or otherwise providing content to the Website for the purposes stated herein, you hereby grant the Company a perpetual, irrevocable, worldwide right and license to copy, use, reproduce, distribute, redistribute, publish, republish, upload, post, transmit, broadcast, modify, alter, create derivative works of, package, repackage, produce and sell copies of such content through the Website.
- You acknowledge that the Company prohibits the uploading, posting, blogging, or otherwise providing to the Website any content or any other material that infringes on any patent, trademark, copyright, trade secret, right of privacy, right of publicity, or any other applicable law or proprietary right.
- By uploading, posting, blogging, or otherwise providing content to the Website, you represent and warrant that:
- you have the legal capacity and authority to grant the rights and license set forth herein;
- the content that you submit to the Website does not infringe any copyright, trademark, right of privacy or right of publicity or other proprietary right of any third party, or defames or casts into disrepute in any manner any third party; and
- the content that you submit to the Website is or was not obtained in an unlawful way that can lead to civil or criminal liabilities. You indemnify and hold the Company harmless from any claims concerning or relating to content that you upload, post, blog, or otherwise provide to the Website.
- You agree that the Company and its directors, officers, employees, partners, agents or vendors shall not be liable for any damages, whether direct, indirect, consequential or incidental, relating to, arising out of or in connection with the use of, or the inability to use, content that you upload, post, blog, or otherwise provide to the Website.
- The Company reserves the right to take any actions that it deems necessary to protect its rights, all rights of which are specifically reserved.
Notification of Copyright Infringement
- The Company respects the intellectual property rights of others and has established the following procedure for receiving notice of infringement in compliance with the Digital Millennium Copyright Act ("DMCA"). Notices should be submitted to The Company's copyright Agent:Phone: 502-271-0236
- To be effective, the notice should include:
- 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 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 that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the Company to locate the material on the Website;
- Information reasonably sufficient to permit the Company to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has 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;
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Violation of Agreement
- The Company reserves the right to seek all remedies available at law and in equity for violations of the Agreement, including the right to block access from a particular Internet address to the Website, or report misuses to law enforcement.
- The Company operates the Website and reserves the right to change the Agreement at any time and from time to time without notice. The failure of the Company to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. The section titles herein are for convenience only and have no legal or contractual effect.
Access to Password Protected/Secure Areas
Access to and use of password protected and/or secure areas of the Website is restricted to authorized users only. Unauthorized individuals attempting to access these areas of the Website may be subject to prosecution.
- Notwithstanding anything in the Agreement, the Company reserves the right, without notice and in its sole discretion, to terminate the Agreement, your account, and/or to block your use of the Website.
- You may terminate your relationship with, access to and use of the Website at any time by canceling your account through your account page on the Website.
Jurisdiction and Venue
This Site is controlled and operated by the Company from its offices within the United States of America. Any claim relating to the Website shall be governed by the internal substantive laws of the State of New York. You and the Company agree to submit to the personal and exclusive jurisdiction of the courts located within the state of New York. You agree that regardless of any statute or law to the contrary, any claim or cause of action by you against the Company arising out of, in connection with or related to your use of the Website or the Agreement must be filed by you within one (1) year after such claim or cause of action arose.