Terms and Conditions

In consideration of Guggenheim Real Estate LLC (a subsidiary of Guggenheim Capital, LLC) (including its affiliated companies, collectively, “we,” “us,” or “our”) providing you limited rights of use and access to this Internet website located at www.guggenheimrealestate.com (“Site”) and the information, documents, research reports, data, features, functionalities and other materials on this Internet website, (collectively, and as such may be revised from time to time, the “Content”), you (which term, as used herein, includes you personally and the company or other organization on whose behalf we grant you access to the Site) hereby agree to the following terms and conditions (this “Agreement”). This Agreement is in addition to, and does not nullify, any other agreement between you and us or any other applicable terms and conditions found on the Site. You agree to comply with all rules or restrictions that are posted on the Site.

PLEASE READ THIS USER AGREEMENT CAREFULLY BEFORE USING THE SITE. EACH TIME YOU USE THE SITE, YOUR USE INDICATES YOUR FULL ACCEPTANCE OF AND AGREEMENT TO ABIDE BY THIS USER AGREEMENT IN ITS THEN CURRENT FORM. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS STATED IN THIS USER AGREEMENT, PLEASE DO NOT USE THE SITE.

1. TO INVESTMENT ADVICE, OFFER OR SOLICITATION; SUITABILITY AND COMPLIANCE WITH LAW.

You acknowledge that the Site and the information available on the Site is for informational purposes only and does not constitute investment, accounting, tax or legal advice or an offer to sell or a solicitation of an offer to buy any security, other investment (including without limitation futures, options, and foreign exchange) or investment service which may be referred to in the Site. You also acknowledge that not all securities, other investments or investment strategies are suitable for or are eligible to be offered to all investors. If you have any questions about any security, other investment, investment strategy or investment service, please contact us at 617.536.5515 for further information or explanation.  If you require investment, accounting, tax or legal advice, you should consult with your own financial advisors, accountants or attorneys regarding your individual circumstances and needs.

Although the Site may include material about securities and other investments generally, as well as research relating to specific securities or other investments, such material and reports are not, and you should not construe them to be, an offer or solicitation of any kind whatsoever. We are not providing investment advice through the Site and we do not represent that any securities, other investment or investment strategies are suitable for you. In fact, such securities, other information or investment strategies may not be suitable for you.

You agree to make your own independent evaluation of the investment merits and suitability for you of any such securities or other investment or investment strategy.    
You agree not to use the Site or its Content as investment, tax, legal or accounting advice.

Transmission or use of the Site or its Content in violation of this Agreement, or any applicable law, rule or regulation (whether of the United States or other countries), or the rights of any third party is prohibited. This includes copyrighted material, material which is defamatory, threatening, obscene, lewd and indecent, material protected by trademark, trade secret, or patent laws, or material that results in an invasion of privacy.

2. NO OBLIGATION TO KEEP INFORMATION CURRENT.

The Content reflects the respective authors' analyses and opinions as of the Content's initial publication date.  Dated Content speaks only as of the date indicated. We are under no obligation to update such Content to reflect circumstances that may occur after its initial publication date. Due to legal restrictions or other reasons, we may not update any Content to take into account material changes or new information. 

You agree that we are not liable for any action you take or decision you make in reliance on any Content.

3. BLUE SKY AND FOREIGN LAWS.

The Site may include Content regarding securities and other investments, some of which may not be qualified for sale in certain states or countries, and therefore, may not be offered to investors in such states or countries. None of the securities or other investments referred to in the Site is available to persons resident in any jurisdiction where such availability or distribution would be contrary to local law or regulation.

4. DISCLAIMERS.

Although the substance of, and the information underlying the opinions and recommendations expressed in, the Content has been obtained from sources believed at the time such information is initially published to be reliable, the accuracy, timeliness and completeness of such information, the underlying data or the computations based thereon cannot be guaranteed.

We do not endorse the opinions of, or warrant the accuracy of facts or other Content contributed by any third parties. Therefore, w e assume no responsibility for the Content received from, or created by, any third parties, including news, research, and other data.
We may, to the extent permitted by law, act upon or use the Content, or the research or analysis on which such Content is based, before the Content is made available on the Site.

Our employees may have positions and effect transactions in the securities of the issuers mentioned therein (or options or futures contracts with respect thereto) and may serve as directors of such issuers.

The value and income of any of the securities, investments, financial instruments or financial strategies mentioned in the Site can decrease as well as increase.  Past performance should not be taken as an indication of guarantee of future performance.

Foreign currency denominated securities and financial instruments are subject to fluctuations in exchange rates that may have a positive or adverse effect on the value, price or income of such securities or financial instruments.

Structured securities are complex, often illiquid, instruments, typically involve a high degree of risk and are intended for sale only to sophisticated investors who are capable of understanding and assuming the risks involved.

We make reasonable efforts to ensure that the Site is secure but we do not guarantee the security of the Site.

Neither this Site nor its Content has been approved by any governmental agency or instrumentality or self-regulatory organization.

5. USER CODES.

In connection with your use of or access to the Site, we from time to time may provide you with user names, passwords and/or other unique identifiers (“User Codes”).
The User Codes are for your personal use only.

You are solely responsible for the security and confidentiality of your User Codes, and agree not to disclose them to any third party, including any other employee in your organization (if applicable).

You are fully responsible for all information provided and any acts or omissions that occur while your User Codes are being used. We are not responsible for any breach of security caused by your failure to maintain the confidentiality and security of your User Codes. You agree that your User Codes may be used to attribute an electronic record and/or electronic signature to you.

You agree to notify us immediately in the event of loss, theft or disclosure of any or all of your User Codes, or if you believe the confidentiality or security of any or all of your User Codes has been compromised in any way, or in the event of your learning about a possible or actual unauthorized access to and/or use of the Site.  

We reserve the right to revoke or modify your User Codes at any time without prior notice and for any or no reason.

6. CONSENT TO RECORDING/MONITORING.

You consent to the recording, retention and use by us of all information and data that you input or otherwise communicate during your access to and/or use of the Site or through any e-mail to or from us and any other electronic communication means and the transmittal of the same to our affiliates, subsidiaries and third parties for processing, database maintenance, record keeping or any other use in accordance with customary practices, policies and procedures applicable in the United States and, of course, our privacy policies. In addition, we may disclose such information to the extent that we determine in good faith to be required by any applicable laws, rules or regulations or order or in enforcement of our rights or the defense of claims. We expressly reserve the right to monitor any and all use of the Site.

7. ELECTRONIC DOCUMENTS.

We may, in our sole discretion, seek your consent to the terms and conditions of this Agreement and certain other agreements on the Site by means of an electronic signature by requesting you to affirmatively “click” on boxes containing the words “I Accept,” “I Agree” or other similar phrases (collectively, “Acceptance Terms”). Please note that in the case of multiple party accounts, each party may be required to “click” on the Acceptance Terms. If you “click” on the Acceptance Terms, your “click” will be deemed a legally binding electronic signature. You acknowledge and agree that you will carefully review any document or web page before making such an electronic signature.

8. USE OF E-MAIL AND OTHER ELECTRONIC MESSAGES.

You acknowledge that we recommend against any use of any form of electronic mail, electronic chat or instant messenger communication, whether transmitted through the Internet, a proprietary network, a computer, a pager or another wireless device or otherwise (but not including voice communication) (collectively, “Electronic Messages”) to communicate any time sensitive or confidential information. Electronic Messages are not secure and may not be confidential. Even though we may communicate with you through Electronic Messages, we may not see any message sent to us through Electronic Messages in a timely manner.  

9. PROPERTY RIGHTS IN INFORMATION AND SITE.

Use of the Site and its Content is only provided for your personal, non-commercial use and display. You may download the Site’s Content to your computer and print out a hard copy for your personal reference, but you will not remove any copyright or other notices contained therein. We expressly prohibit the use of devices (including software) designed to provide repeated automated access to the Site and its Content for a commercial purpose.  We reserve the right to take all measures necessary to prevent such access, including denial or termination of service.

The Site and its Content are our property or the property of third parties and are protected by applicable laws.   The Site is protected by one or more copyrights, patents, database rights, trademarks, servicemarks and/or other intellectual property and proprietary rights that are owned by us or third parties. You may not decompose, decompile, reverse engineer, disassemble or otherwise deconstruct all or any portion of the Site

You may discuss information that you learn from the Site with your financial, legal or tax advisors, and others with whom you share investment decisions.  Except as expressly authorized herein, you may not reproduce, transmit, sell, display, distribute, publish, broadcast, circulate, modify, disseminate, or commercially exploit the Site or such Content provided in any manner (including electronic, print or other media now known or hereafter developed) without our written consent. You also agree not to use the Site or its Content for any unlawful purposes, and you will comply with any request from us to protect our rights in the Site and its Content.

10. HYPERLINKS.

In the event you use the Site or the links included on the Site to gain access to a World Wide Web site or an Internet location or a source of information of any company, organization or person or to any other Internet location, you do so at your own risk and you acknowledge that such other sites or locations are not under our control and agree that we will not be responsible for any information or other links found at any such World Wide Web site or Internet location or source of information, or for your use of such information. We provide such links only as a convenience to you, and have not tested any software or verified any information found at such sites. The fact that we have provided a link to another site does not signify our endorsement of the site or its contents. There are inherent risks in the use of any software or information found on the Internet, and you acknowledge that you understand these risks before making any access to and/or use of the Site.

11. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY.

THE SITE, ITS RELATED FUNCTIONALITIES (INCLUDING, BUT NOT LIMITED TO, TRANSACTIONS) AND CONTENT, AND ANY SOFTWARE OFFERED TO YOU THROUGH US OR A THIRD PARTY WEBSITE IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” BASIS. WE AND OUR DIRECTORS, OFFICERS, EMPLOYEES, CONTROL PERSONS, VENDORS, LICENSORS AND AGENTS, AS WELL AS ANY THIRD PARTY PROVIDERS, DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, ACCURACY, COMPLETENESS, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TIMELINESS AND ERROR-FREE UNINTERRUPTED SERVICES.

AS TO THE OPERATION OF THE SITE, WE AND OUR DIRECTORS, OFFICERS, EMPLOYEES, CONTROL PERSONS, VENDORS, LICENSORS AND AGENTS, AS WELL AS ANY THIRD PARTY PROVIDERS MAKE NO WARRANTY THAT (i) THE OPERATION OF THE SITE WILL MEET YOUR REQUIREMENTS, (ii) ACCESS TO THE SITE WILL BE UNINTERRUPTED, (iii) THE RESULTS THAT YOU MAY OBTAIN FROM THE USE OF THE SITE WILL BE ACCURATE OR RELIABLE, OR (iv) DEFECTS WILL BE CORRECTED.  YOU (AND NOT US) ASSUME THE ENTIRE COST OF ALL SERVICING, REPAIR, OR CORRECTION THAT MAY BE NECESSARY FOR YOUR COMPUTER EQUIPMENT AND SOFTWARE AS A RESULT OF ANY VIRUSES, ERRORS OR OTHER PROBLEMS YOU MAY HAVE AS A RESULT OF VISITING THE SITE.

TO THE EXTENT THAT THE LAW DOES NOT PERMIT THE DISCLAIMER OF WARRANTIES, ALL CONTENT ACCESSIBLE ON THE SITE, OR ANY OTHER LOCATION TO WHICH WE LINK, AND ALL OPERATIONS ON THE SITE ARE WARRANTED ONLY TO THE MINIMUM AMOUNT LEGALLY REQUIRED.

IN USING THE SITE, YOU SPECIFICALLY AGREE THAT YOU WILL NOT HOLD US OR OUR DIRECTORS, OFFICERS, EMPLOYEES, CONTROL PERSONS, VENDORS, LICENSORS AND AGENTS, AS WELL AS ANY THIRD PARTY PROVIDERS LIABLE TO YOU OR ANY PARTY FOR ANY DAMAGES OR INJURY OR LOSS, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, THAT MAY RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SITE OR ITS CONTENT (OR ANY OTHER LINKED SITE OR LOCATION), WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF INFORMATION AVAILABLE ON THE SITE (OR ANY OTHER LINKED SITE OR LOCATION).  WE AND OUR DIRECTORS, OFFICERS, EMPLOYEES, CONTROL PERSONS, VENDORS, LICENSORS AND AGENTS, AS WELL AS ANY THIRD PARTY PROVIDERS WILL NOT BE LIABLE EVEN IF ADVISED ON THE POSSIBILITY OF SUCH DAMAGES.  SUCH DAMAGES INCLUDE BUT ARE NOT LIMITED TO DAMAGES OR INJURY CAUSED BY ERROR, OMISSION, INTERRUPTION, DEFECT, FAILURE OF PERFORMANCE, DELAY IN OPERATION OR TRANSMISSION, LINE FAILURE, COMPUTER VIRUS OR OTHER HARMFUL COMPONENT.

UNDER ANY AND ALL CIRCUMSTANCES, OUR MAXIMUM LIABILITY AND THAT OF OUR DIRECTORS, OFFICERS, EMPLOYEES, CONTROL PERSONS, VENDORS, LICENSORS AND AGENTS, TO ANY USER OF THE SITE WITH RESPECT TO THE SITE OR THE CONTENT IS $100.

12. YOUR REPRESENTATIONS AND WARRANTIES.

You hereby represent and warrant that:

• You have all consents, rights, authority, and have taken all actions necessary, to execute this Agreement and access and use the Site.  Furthermore, each individual executing this Agreement represents and warrants that he or she is duly authorized by all necessary action to execute this Agreement on behalf of him or herself and his or her principals.

• To the extent you are accessing the Content available for our customers, y ou are an investor or an authorized representative of an investor in a fund managed by Guggenheim Real Estate LLC and an affiliate.

• To the extent a User Code has been provided to access any portions of this Site, y ou are the person to whom the User Codes used to access the Site were issued and the information you provided to us in connection with the issuance of your User Codes was and is accurate and complete.

• You will not reverse engineer or reverse compile any of our technology, including any Java applets associated with the Site.

• You will not violate or attempt to violate the security of the Site.

 

13. INDEMNIFICATION.

You hereby agree to indemnify and hold harmless us and our affiliates and our directors, officers, employees, control persons, vendors, licensors and agents, from and against any and all claims, actions, proceedings, obligations, penalties, losses, liabilities, damages, costs and expenses (including reasonable legal and other professional fees and costs) directly or indirectly arising out of or related to (i) your breach of any agreements, representations and warranties contained in this Agreement, (ii) your access to and/or use of the Site and/or its Content, (iii) your access to and/or use of the Site and/or its Content in violation of any of our rights or the rights of any third party, including copyright, patent, trade secret, trademark, or other intellectual property rights and publicity and privacy rights, (iv) your access to and/or use of the Site and/or its Content in violation of any applicable law, rule or regulation, (v) your failure to maintain the security and confidentiality of your User Codes in accordance with this Agreement; or (vi) third party claims which, if proven, will place you in breach of your representations, warranties, covenants or other provisions of this Access Agreement.

14. LOCATION; GOVERNING LAW.

The Site is published in the United States. You agree that any access to or use of the Site or its Content will be deemed to be entirely in New York City, under and subject to applicable New York State and United States Federal law, rules and regulations, to the same extent as if you were to physically go to New York City. This Agreement and all the terms herein will be governed by and construed in accordance with the laws of the State of New York without giving effect to principles of conflicts of law. All controversies will be submitted exclusively to Federal or state courts in the State of New York. You consent to personal jurisdiction in any applicable court for purposes of any such litigation. Any right to trial by jury with respect to any claim or action is hereby waived by all parties to this Agreement.

15. MODIFICATION/TERMINATION.

We may, at any time and for any reason, with or without prior notice to you (a) modify or discontinue, in whole or in part, any portion of the Site and/or your access to the Site, (b) change the terms and conditions of your use of the Site, (c) prohibit or restrict your access to and use of the Site, and (d) modify this Agreement at any time upon written notice or posting to the Site (unless otherwise stated, modifications will become effective upon posting). Your access to and use of the Site is subject to compliance with all terms and conditions set forth in this Agreement.  In addition, to the extent you are our customer, your access and use of this site is also subject to the respective Subscription Agreement . This Agreement (as may be revised from time to time as described herein), however, is irrevocable and will survive the termination of the respective Subscription Agreement , your access to, and use of, the Site, and your account with us. You agree that if you use the Site and/or its Contents after such notification of changes in the Agreement, you will be bound by all such changes.

16. FORCE MAJEURE.

We and our directors, officers, employees, control persons, vendors, licensors and agents are not liable for losses caused directly or indirectly by any of our non-performance as a result of events beyond our control including natural disasters, acts of God, war, terrorism actions or decrees of governmental bodies, exchange or market rulings, failure of communication lines or utility systems, equipment and systems failures, unauthorized access, and theft (each, a “Force Majeure Event”). All of our obligations with respect to the effected elements under this Agreement will be suspended for the duration of such Force Majeure Event.

17. PRIVACY

By using the Site, you agree that we may store the information you provide in the registration process and through your use of the Site. We may use the information to inform you about other products and services from us as described in our Privacy Policy . You also agree that we may include this information, on an anonymous basis, as part of aggregate statistical information about clients provided to third party information providers, merchants, advertisers, licensors, vendors and sponsors who are or may be involved with our services. For information on how we use and protect the personal information you may provide on this Site, please click on the link named Privacy Policy to access explanations of our privacy policy. This Site may contain links to other Web sites, and our Privacy Policy does not apply to those sites. If you link to any of those sites, we recommend that you review their privacy policies. You may not use this Site to collect or harvest personal information about other persons or otherwise use the Site in a manner that is inconsistent with those persons’ privacy or personal data protection rights.

18. SOFTWARE/THIRD PARTY SERVICES

You may access and use the Site through the Internet using publicly available third party web browsers and software from third parties not affiliated with us (collectively, "Software"). You are responsible for the installation, maintenance and operation of Software and acknowledge that we are not responsible for your use of the Software, its performance, or to notify you of any upgrades, fixes or enhancements to Software. When you use Software, you agree to the license terms that may be provided with such Software. You acknowledge that Software you use to access or use online services at the Site may include encryption methods that are subject to the export control laws of the United States. By using or downloading the Software, you agree and warrant that neither the Software, nor any direct product of the Software, may be exported or re-exported outside the United States or to any foreign entity or "foreign person" (as defined by United States Government regulations), including anyone who is not a citizen, national, or lawful permanent resident of the United States. We are not responsible for any use of the Software by you in violation of this User Agreement or the export and customs laws and regulations of the United States relating thereto.

You are responsible for any charges incurred to use and access the Site through an Internet access provider or other third party service. You agree to pay all charges billed to you by third parties in connection with your access to the Site. We are not liable for any amounts billed to you by a third party, whether or not these amounts were authorized by you.

19. MISCELLANEOUS.

This Agreement (including the respective Subscription Agreement , if applicable) represents the complete and exclusive statement of the agreement and understanding between you and us regarding your rights to use and access the Site and to use its Content, and supersedes all agreements which you may sign with us, and all representations (whether written or oral), regarding such subject matter.

Except as herein provided, no waiver, modification or amendment of any provision of this Agreement will be effective against us unless the same is in writing and signed by one of the executive officers of the party against whom the waiver, modification or amendment is sought. 

Should any term or provision of this Agreement be deemed or held to be invalid or unenforceable, the remaining terms and provisions will continue in full force and effect.

Our failure to insist at any time upon strict compliance with any term of this Agreement, or any delay or failure on our part to exercise any power or right given to us in this Agreement, or a continued course of such conduct on our part will at no time operate as a waiver of such power or right, nor will any single or partial exercise preclude any other future exercise.

All rights and remedies given to us in this Agreement are cumulative and not exclusive of any other rights or remedies which we and the Clearing Agent otherwise have at law or equity.   

This Agreement will be binding upon you and your executors, heirs, successors and assigns.

Any and all headings in the text of this Agreement are solely for convenience or reference and do not constitute a part of this Agreement, nor do they affect the meaning, construction or effect of this Agreement.

For those persons who are or become customers of Guggenheim, you hereby agree to the terms and conditions of the respective Subscription Agreement , unless you already signed the respective Subscription Agreement .  

The terms “including” and “includes” as used in this Agreement are intended to identify some, but not all, examples relevant to the subject matter and, therefore, should be read as “including, but not limited to” or “includes, but not limited to.” 

No party to this Agreement may assign or delegate its respective rights, duties or obligations under this Agreement without the prior written consent of the other party.  We may, however, assign this Agreement, or any rights or obligations hereunder, to an affiliate, subsidiary or any entity owned or controlled by us, or pursuant to a merger, consolidation, change of control or corporate reorganization.

By electronically using and/or accessing the Site or using any of the Site's Content you acknowledge and agree: (i) that you, as well as your representatives (including your heirs, executors, administrators, assigns and attorneys-in-fact) intend to form a legally binding contract between you (and your representatives) and us; (ii) that you have read and agree to the terms and conditions of this Agreement; (iii) that you agree and intend that this Agreement, the respective Subscription Agreement, and other agreements, terms, conditions, rules and procedures governing your accounts with us (as applicable) to be the legal equivalent of signed, written contracts, and equally binding; (iv) that by using this Site and electronically agreeing to this Agreement, you acknowledge that you have received a copy of this Agreement by your viewing a web page containing a hyperlink to the web page where this Agreement is displayed or otherwise; (v) that in the case of a joint or similar type account, this Agreement constitutes the agreement of, and is binding upon, all parties to the account and that we may act upon the electronic instructions of any holder of a joint account in sending notices or other communications to, or otherwise dealing with, any joint account holder; and (vi) that if you are executing this Agreement on behalf of others, you hereby certify that you are an authorized representative, duly authorized by all required corporate action to act on behalf of such others.