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
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
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.