TERMS AND CONDITIONS OF ACCESS

       The following Terms and Conditions apply to all visitors to or users of this Site.  By accessing this Site, you acknowledge acceptance of these Terms and Conditions.  Fagen, Inc. (“Fagen”) reserves the right to change these Terms and Conditions from time to time at its sole discretion.  These Terms and Conditions apply to all visits to this Site, both now and in the future. 

       IMPORTANT!  You manifest your agreement to these Terms and Conditions by any act demonstrating your assent thereto, including clicking any button containing the words “I agree” or similar syntax or merely accessing the Site, whether you have read these Terms and Conditions or not.  If you do not agree to be bound by these Terms and Conditions, you may not enter the Site, you must exit the Site immediately, you may not use or access the Site, and you may not print or download any materials from the Site.  You may use and access the Site only in accordance with these Terms and Conditions.  Please consult these Terms and Conditions regularly and read them carefully before using the Site, as Fagen reserves the right to modify these Terms and Conditions without notice to you.  You affirm that you have read these Terms and Conditions and understand, agree, and consent to them.

       Introductory Provision.  Fagen is in the business of providing design, engineering, procurement and construction services for various industrial facilities, (the “Facilities”).  You are in the business of providing certain materials, equipment, design and/or construction or related goods or services (the “Services “).  You wish to enter into discussions with Fagen regarding a transaction or transactions pursuant to which you would provide the Services toward one or more Facilities (the “Purpose”).  Upon your acceptance of these Terms and Conditions, Fagen will make available to you or otherwise disclose confidential information to you through this Site to enable you to perform required evaluations in connection with the Purpose. 

       1.     Scope of Parties.  The terms “party(ies)” and “Party(ies),” as used in this Agreement, shall mean, as applicable, Fagen and you, as well as each Party’s respective employees, officers, agents, and Representatives, and their affiliates, majority-owned subsidiaries, parent companies and business organizations including each such entity’s directors, managers, officers, employees, and agents.   Additionally, with respect to Fagen, the terms “Fagen” or “Party” shall include Fagen Engineering, LLC.  A Party’s “Representatives” shall mean the Party (as defined above) and its attorneys, accountants, lenders or other legal, financial or business advisors providing services to such Party in connection with the Facilities or the Purpose.

       2.     Definition of Confidential Information.

           a.     “Confidential Information” shall mean all trade secrets and all data, documents, agreements, and information of Fagen and its customers, including, without limitation, business sensitive information, trade secrets, know-how, patent applications, financial information, documents, reports, memoranda, analyses, compilations, summaries, proprietary project descriptions, design drawings, computer programs and models and the results therefrom, studies, financial and other projections, test results, and scientific, engineering, statistical, business, commercial, technical, or process data or information, and other proprietary information whether written or oral, that are disclosed, directly or indirectly, to you (the “Receiving Party”), including through your access to this Site, by Fagen. 

           b.     “Confidential Information” does not include any data, document, agreement, or information, whether written or oral, that is:

 

               i.     known to or lawfully in the possession of the Receiving Party prior to its disclosure by Fagen;

               ii.     in the public domain at the time of its disclosure or which subsequently becomes part of the public domain through no fault or wrongful act of the Receiving Party;

                iii.    readily ascertainable from public or trade sources at the time of its disclosure by Fagen;

              iv.    independently developed by the Receiving Party or its Representatives or subsidiaries, without reference to the Confidential Information, prior to the disclosure by Fagen; or

 

               v.     received from a third party who represents in writing to the Receiving Party that it is not subject to a confidentiality agreement or other binding limitation which would preclude it from disclosing such information.

       3.     Restrictions on Disclosure of Confidential Information.  The Receiving Party shall hold in confidence all Confidential Information received hereafter, and, subject to the remainder of this Section 3, shall not reveal or disclose Confidential Information to any third party without the prior written consent of Fagen; provided, however, the Receiving Party may reveal or disclose such information to its lenders, partners, investors, engineers, consultants, counsel, and other such similar parties advising the Receiving Party with respect to the Facilities or the Purpose without liability hereunder only if the party to whom disclosure is made has first agreed, in writing, to be bound by these Terms and Conditions. The Receiving Party may also reveal or disclose such information to the limited extent such disclosure is required by applicable law, order, regulation, rule (including a rule of procedure), subpoena, civil investigative demand, or similar process, and only if the Receiving Party provided Fagen with prompt notice of the need to disclose prior, if possible, to any disclosure of Confidential Information so that Fagen could intervene if necessary to seek an appropriate protective order and/or waive the Receiving Party’s compliance with these Terms and Conditions.  In addition to the restrictions on disclosure to third parties, the Receiving Party also shall limit internal disclosure of Confidential Information to its directors, officers, partners, employees, and agents (including attorneys, accountants, and other consultants), and then only to the extent such disclosure is reasonably related to the Facilities or the Purpose.  All such directors, officers, partners, employees, and agents to whom Confidential Information is disclosed shall be notified that the Confidential Information being disclosed to them is subject to these Terms and Conditions and that they must treat such material in accordance with these Terms and Conditions.

      4.     Non-Circumvention and Non-Compete.  The Receiving Party will utilize the Confidential Information solely and exclusively in connection with and in order to accomplish the Purpose discussed herein and will not use such Confidential Information, or any part thereof, to the detriment or disadvantage of Fagen, nor to gain a competitive advantage over Fagen in any competitive situation in which Fagen or any affiliate thereof may be involved, whether individually or in association with other firms. 

       5.    Term.  These Terms and Conditions and the obligations hereunder shall remain in effect for the longer of a period five (5) years from the date of your acceptance hereof or five (5) years following the completion of the last Facility for which you provide the Services.

       6.     Retention of Interest.  Neither the acceptance of these Terms and Conditions, nor the disclosure of any Confidential Information hereunder, nor anything herein shall be deemed to constitute, expressly or by implication, estoppel, or otherwise, the grant of any license, immunity, or other right with respect to any patents, trade secrets, or know-how now or hereafter owned by or controlled by Fagen. 

       7.    Copies; Return of Confidential Information.  The Receiving Party shall only make such copies of Confidential Information as are necessary for the advancement of the Facilities or the Purpose. All such copies shall, upon request, be promptly returned to Fagen with the original or destroyed upon expiration of the term of these Terms and Conditions as set forth in Section 5.  Should Receiving Party choose to destroy any copies or originals of the Confidential Information, it shall within fifteen (15) days of Fagen’s request, furnish a certificate of an owner, partner or officer of Receiving Party certifying that Confidential Information not returned to Fagen has been destroyed.  To the extent Confidential Information held by the Receiving Party is then in tangible form, such Confidential Information, together with all copies thereof, shall be returned to Fagen upon expiration of the term of these Terms and Conditions or promptly at the request of Fagen.

       8.    Governing Law.  These Terms and Conditions, and the agreement made by your acceptance hereof, shall be governed by and construed in accordance with the internal laws of the State of Minnesota.

       9.    Successors and Assigns.  These Terms and Conditions shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns.

       10.    Remedies for Breach.  Upon any breach or threatened breach hereof by the Receiving Party, Fagen shall be entitled to seek any form of legal or equitable relief, including, without limitation, injunctive relief.  Any relief sought shall be without prejudice to such Fagen’s other rights in law, in equity, or under these Terms and Conditions.  The prevailing Party shall be entitled to recover from the other its reasonable costs of litigation (including, without limitation, attorneys’ fees and expenses).

       11.    No Other Agreements Implied.  The Parties understand and agree that no contract related to the Purpose (other than the agreement formed herein) shall be deemed to exist by virtue of the acceptance of these Terms and Conditions, that no such contract with respect to any of the above-referenced transactions shall exist until a definitive agreement with regard to that transaction is reached and reduced to writing with respect to the subject matter of such contract, and that, until such time as a definitive contract is reached as described above, neither Party has any legal obligation of any kind whatsoever to the other, except for the obligations undertaken pursuant to these Terms and Conditions.

       12.    Indemnity.  The Receiving Party agrees to indemnify, defend, and hold Fagen, including its employees, representatives, and agents, harmless from and against any and all claims, proceedings, demands, causes of action, costs, expenses, and losses (“Claims and Losses”) arising directly from or directly in connection with these Terms and Conditions, provided any such Claim or Loss does not arise from the gross negligence or willful misconduct of Fagen.

       13.    Severability.  If any provision or any part of a provision of these Terms and Conditions shall be finally determined to be superseded, invalid, illegal, or otherwise unenforceable pursuant to any applicable law, such determination shall not impair or otherwise affect the validity, legality, or enforceability of the remaining provision or parts of the provision of these Terms and Conditions, which shall remain in full force and effect as if the unenforceable provision or part were deleted.

       14.    Survival; Cumulative Covenants.  These Terms and Conditions shall survive the execution of any subsequent agreement, except only to the extent expressly provided otherwise in any subsequent agreement.  The covenants and obligations of the Parties contained in these Terms and Conditions are each, respectively, in addition and cumulative to the others and are not intended to and do not limit or restrict the covenants and obligations of the Parties contained in any other sections herein.  The covenants and obligations of the Parties contained in herein shall also be additional and cumulative to any covenants and obligations of the same Parties contained in any subsequent agreement, and shall not limit or restrict the covenants and obligations of the same Parties contained in any subsequent agreement, except only to the extent expressly provided otherwise in any subsequent agreement.

       15.    ACCURACY OF INFORMATION AND DISCLAIMER OF WARRANTIES.  You expressly agree that use of the Site or any of the materials contained therein is at your own and sole risk. The Site and all materials contained therein are provided “as-is” without warranty of any kind, either express or implied, including but not limited to, any implied warranties of merchantability, fitness for a particular purpose, title, or non-infringement.  Fagen makes no representations or warranties that the Site or any materials contained therein will be uninterrupted, timely, secure, or error free, nor does Fagen make any representations or warranties as to the quality, accuracy, or completeness of the information contained on the Site.