Last Revised: October 9, 2012
III. USE OF THE ECP SITE AND SITE CONTENT
(a) License to Use the ECP Site
(b) Website Accounts
Certain areas of the ECP Site are accessible only to limited partners of the ECP funds and their designated representatives (collectively, “LPs”), and then only by entering a validly issued username and password. You may not access any password protected areas of the ECP Site without proper authorization. By accessing the password protected areas of the ECP Site using a valid username and password, you acknowledge and agree that: (i) ECP has granted you limited access to specific information or materials relating to your investments solely for your lawful, personal, non-commercial and informational purposes; (ii) such information and materials are confidential and proprietary to ECP; (iii) you will hold such information and material strictly confidential, and without the prior written consent of ECP, you will not disclose any such information or materials to any person or entity, use such information or materials for any purpose other than those expressly permitted by us, or copy, reproduce or redistribution in whole or in part any of the information or materials in any manner; (iv) you will immediately return or destroy at the request of ECP all copies of such information or materials; and (v) you will take reasonable steps to protect the confidentiality of your username and password, and you agree to immediately notify ECP if you become aware of any disclosure, loss, theft or unauthorized use of your username or password. LPs are also subject to the confidentiality provisions contained in the limited partnership agreement of any applicable ECP fund(s), which apply to all information and materials included in any password protected areas of the ECP Site.
The information contained in the ECP Site may include material non-public information regarding the ECP funds and their underlying portfolio companies. It is a violation of U.S. securities laws for a person in possession of material non-public information concerning an issuer to purchase or sell securities of such issuer or to communicate such information to another person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell securities.
ECP will not be liable for any loss or damage arising from any failure to comply with this Section III(b).
(c) Copyright Protection
The ECP Site and all Site Content contained thereon is protected by copyright as a collective work under United States copyright laws, and is owned or controlled by, or licensed to, ECP or the party listed as the provider of the applicable Site Content. UNAUTHORIZED COPYING, REPRODUCTION, DISTRIBUTION, MODIFICATION, PUBLICATION, DISPLAY, ADAPTATION, UPLOADING, CREATION OF DERIVATIVE WORKS, POSTING, OR TRANSMISSION OF ANY OF THE SITE CONTENT IS PROHIBITED. You may download any Site Content available for download on the ECP Site only for lawful, personal, noncommercial and informational purposes, provided that such downloadable Site Content is also subject to the terms of this Section III, and provided further that you maintain and abide by all copyright, trademark and other notices contained in such Site Content, or if none, you abide by the following copyright and trademark notice with respect to such downloaded materials:
© 2012 Energy Capital Partners, LLC. The Energy Capital Partners logo and all associated trademarks and logos used herein are trademarks of Energy Capital Partners, LLC or its affiliates. Other company and product names used herein are properties of their respective owners. All rights reserved.
“ECP,” “Energy Capital,” “Energy Capital Partners” and other marks, product names and company names appearing on the ECP Site are trademarks and service marks of ECP and/or the respective owners of such other marks, product names or company names, as applicable, and in each case are protected by law. All such trademarks and service marks may be used publicly only with permission from ECP. Fair use of the trademarks and service marks requires proper acknowledgment in accordance with the above copyright and trademark notice.
(e) No Offers or Reliance
ECP is not utilizing the ECP Site to provide investment or other advice, and no information or material on the ECP Site is intended to be a recommendation to buy or sell any securities or is to be relied on for the purpose of making or communicating investment decisions. Past performance is not indicative of future results and no representation is being made that any investment will or is likely to achieve profits or losses similar to those achieved in the past, or that significant losses will be avoided.
The information contained on the ECP Site is not an offer to sell or a solicitation to buy any security, financial instrument, investment or other product or service of ECP. No action should be taken or omitted to be taken in reliance upon information on the ECP Site. Advice from a suitably qualified professional should always be sought in relation to any particular matter or circumstance. No security, financial instrument, investment or other product or service is offered or will be sold by ECP or, if sold by us, will be effective in any jurisdiction in which such offer or solicitation, purchase or sale would be unlawful under the securities or other laws of such jurisdiction.
ECP strives to provide accurate, complete and updated information on the ECP Site; however, ECP does not warrant that any information on the ECP Site is complete or free from error, or that such information is fully updated through any particular date. All material on the ECP Site is information of a general nature and does not address the circumstances of any particular individual or entity. No information or materials contained on the ECP Site should be construed or relied upon as investment, legal, tax or other professional advice. ECP will not treat users of the ECP Site as its partners, clients, customers or investors by virtue of their accessing the ECP Site. ECP does not offer investment advisory services to the public.
Certain of the information contained in the ECP Site may include certain historical investment performance information and forward-looking statements relating to the ECP funds as well as to their underlying portfolio companies. Such information is based upon a variety assumptions that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties. Actual events are difficult to project and can be expected to depend upon factors that are beyond the control of ECP. No representation or warranty is made as to future performance or with respect to any performance information or forward-looking statements contained in the ECP Site. ECP does not assume any obligation to update or otherwise revise the ECP Site to reflect actual circumstances or to reflect the occurrence of unanticipated events, even in the event that any or all of the underlying assumptions are shown to be in error. Furthermore, ECP does not intend to update the ECP Site to reflect changes in general economic or industry conditions.
(f) Links to Other Websites and/or Materials
Links may appear on the ECP Site that may be used to link to third party website(s) that are not owned or controlled by us (the “Linked Websites”). These links are provided solely as a courtesy to our ECP Site visitors. ECP reserves the right to add, change, decline or remove any link at any time. ECP has no control over, and assumes no responsibility for (i) the materials, information, goods or services available or contained on the Linked Websites or (ii) any privacy or other practices of the Linked Websites. If you decide to access any of the Linked Websites, you expressly relieve ECP of any and all liability arising from your use of the Linked Websites. Accordingly, ECP encourages you to read the terms and conditions and privacy policies of the Linked Websites that you visit.
IV. DISCLAIMERS AND LIMITATION OF LIABILITY
(a) No Express or Implied Warranties
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE ECP SITE AND SITE CONTENT IS AT YOUR OWN RISK AND THE ECP SITE IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER ECP, ITS AFFILIATES OR THIRD PARTY SERVICE PROVIDERS, NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR OTHER REPRESENTATIVES (COLLECTIVELY, INCLUDING ECP, THE “ECP PARTIES”), MAKES ANY WARRANTY WHATSOEVER, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY OR NON-INFRINGEMENT, OR THAT THE ECP SITE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE ECP SITE OR AS TO THE ACCURACY, RELIABILITY, QUALITY OR CONTENT OF ANY INFORMATION OR SERVICE PROVIDED ON OR THROUGH THE ECP SITE.
(b) Limitation of Liability
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE ECP PARTIES WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THE ECP SITE, OR THE BREACH OF ANY REPRESENTATION OR WARRANTY, WHETHER AS A BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY APPLIES, WITHOUT LIMITATION, TO ANY INJURY OR DAMAGE OF ANY KIND, INCLUDING TO YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY, RESULTING FROM ANY MISTAKES, INTERRUPTION, OMISSION, DELETION OR OTHER DATA LOSS, DEFECT, DELAY IN OPERATION OR TRANSMISSION, FAILURE OF PERFORMANCE, COMPUTER VIRUS, FILE CORRUPTION, NETWORK OR SYSTEM OUTAGE, COMMUNICATION-LINE FAILURE, BROWSING, DOWNLOAD OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO OR AUDIO, OR THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF ANY RECORD. ECP SHALL NOT BE LIABLE FOR THIRD PARTY CLAIMS FOR DAMAGES AGAINST THE USER, OR FOR MALFUNCTION, DELAYS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS, OR OTHER CLAIMS, LOSSES OR DAMAGES OF ANY KIND, WHETHER OR NOT ECP HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH CLAIMS, LOSSES OR DAMAGES.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions the above limitations and exclusions may not apply to you. In such states or jurisdictions the ECP Parties’ liability is limited to the extent permitted by law, thereby minimizing the ECP Parties’ liability to you to the lowest amount permitted by applicable law. In no event shall our total liability to you for all damages, losses and causes of action exceed the amount paid by you, if any, for accessing this website.
(a) Governing Law and Jurisdictional Issues
This agreement is governed in all respects by the substantive laws of the State of New York and of the United States of America. The UN Convention on Contracts for the International Sale of Goods is expressly disclaimed. The ECP Site is controlled and operated from ECP’s offices in the United States of America, and ECP makes no representations that materials in the ECP Site are appropriate or available for use in other locations. Those who choose to access the ECP Site from other jurisdictions do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the ECP Site from any territory where the content is illegal is prohibited. ECP reserves the right to limit access to the ECP Site to any person, geographic region or jurisdiction.
You acknowledge that any software which may be available or provided to you on this ECP Site may contain technology that is subject to strict controls pursuant to export control laws and regulations of the United States and other countries and jurisdictions. You hereby agree that you will not transfer or export such software in violation of such applicable export laws and regulations. We do not authorize the downloading or exportation of any software, technical data or materials from this ECP Site to any jurisdiction prohibited by such export controls laws and regulations.
(b) Suggestions and Feedback
(c) Electronic Communications
When you visit the ECP Site or send emails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We may communicate with you by email or through other electronic means. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
(d) Interpretation and Entire Agreement
(e) No Agency
No agency, partnership, joint venture, or employment is created as a result of your use of the ECP Site, and you do not have any authority of any kind to bind the ECP Parties in any respect whatsoever.
(f) Contact Us
Energy Capital Partners
51 John F. Kennedy Parkway, Suite 200
Short Hills, New Jersey 07078