INVESTOR COMMUNICATION SYSTEM
TERMS OF SERVICE AGREEMENT
May 22, 2012
This Terms of Service Agreement (the "Agreement") states the legally binding terms and conditions which
govern your use of the Investor Communication System (the "Service") located at http://www.firstreserve.com
(the "Website") provided by First Reserve Management, L.P., an exempted limited partnership organized under
the laws of the Cayman Islands (together with its affiliates, "First Reserve"). Your access or use will (a)
create a legal contract between you and First Reserve under the terms and conditions of this Agreement and (b)
constitute your acknowledgement that you have carefully read, understood, accept and agree to be bound by the
terms and conditions set forth in this agreement. You, as the user of the Service, are referred to herein as
"you" or "user." If you agree to be bound by it, click "I AGREE" at the bottom of the page. If you do
not click "I AGREE," you cannot use the Service and must exit this Website immediately.
The Information (as defined below) is provided on a confidential basis for informational purposes only
and may not be relied on in any manner as legal, tax, regulatory, financial, investment, accounting or other
advice and does not constitute an offer to sell or a solicitation of an offer to purchase any securities
and may not be used or relied upon in connection with any offer or sale of securities in First Reserve
Fund XIII, L.P. or any parallel fund thereto (the "Fund") or any other investment vehicle sponsored
by First Reserve. An offer or solicitation will be made only through the final confidential private
placement memorandum of the Fund (as supplemented and/or restated from time to time, the "PPM"),
subscription agreement and other related documents with respect to a particular investment opportunity
and will be subject to the terms and conditions contained in such documents, including the qualifications
necessary to become an investor. The interests in the Fund have not been approved or disapproved by the
U.S. Securities and Exchange Commission (the "SEC") or by the securities regulatory authority of any
state or of any other U.S. or non-U.S. jurisdiction, nor has the SEC or any such securities regulatory
authority passed upon the accuracy or adequacy of the PPM or any of the Information. Any representation
to the contrary is a criminal offense.
Although the Website may include investment-related information, nothing on the Website is a
recommendation that you buy, sell or hold any security or other investment or that you pursue any
investment style or strategy. Neither First Reserve nor any of its affiliates or agents is
making any claim or giving any advice through the Website as to whether any security or investment
is suitable to you or will be profitable. Nothing on the Website is intended to be, and you should
not consider anything on the Website to be, regulatory, financial, investment, accounting, tax or
legal advice. You are urged to consult with your own advisors for legal, tax, regulatory, financial,
investment and accounting advice with respect to your individual circumstances and needs.
Unless otherwise indicated, all internal rates of return ("IRRs") and multiples of invested
capital or other references to "MOIC" ("MOICs") presented in any part of the Information on a
"gross" basis or annual portfolio level cash yield, if any, do not reflect management fees, "carried interest", taxes, transaction costs in
connection with the disposition of unrealized investments, and other expenses borne or to be
borne by potential investors the Fund, which will reduce returns and, in the aggregate, are
expected to be substantial. For a description of such management fees, carried interests, taxes,
transaction costs, and other expenses, investors should see the "Detailed Summary of Principal Terms"
in the PPM and Form ADV Part 2 maintained by First Reserve. You may, upon request,
obtain a hypothetical illustration of the effect of such fees, expenses and other charges on
such returns. As used throughout this Website, and unless otherwise indicated, "Gross IRR"
and "Net IRR" shall mean an aggregate, compound, annual, gross or net, as applicable, internal
rate of return on investments calculated on the basis of the actual timing of investment inflows
and outflows, aggregated quarterly and annualized. Except as otherwise indicated, IRRs are
calculated using internal valuations. In considering the prior performance information
contained in the Information, prospective investors should bear in mind that past or targeted
performance is not necessarily indicative of future results, and there can be no assurance that
targeted returns will be achieved, that the Fund will achieve comparable results or that the
Fund will be able to implement its investment strategy or achieve its investment objectives.
An investment in the Fund is speculative and entails a high degree of risk, and no assurance
can be given that the Fund’s investment objective will be achieved or that you will receive a
return of your capital. An investment in the Fund is suitable only for sophisticated investors
with such knowledge and experience in financial and business matters as to be capable of
evaluating on their own the merits and risks of participation. The PPM, subscription agreement
and other related documents posted on the Website describe the significant risks and other important
information related to a potential investment in the Fund. You should carefully review such
documents before you subscribe for any interests in the Fund. In making an investment decision,
you must rely on your own independent investigation and appraisal of the Fund and the offering
of interests therein, including the merits and risks involved, without reliance on the Information,
the Fund, First Reserve or their respective affiliates.
Statements contained in the information on this Website (including those relating to current
and future market conditions and trends in respect thereof) that are not historical facts are
based on current expectations, estimates, projections, opinions and/or beliefs of First Reserve.
Such statements involve known and unknown risks, uncertainties and other factors, and undue
reliance should not be placed thereon. Certain information contained on this Website contain
statements, estimates and projections (including financial projections) as well as certain
"forward-looking statements," which can be identified by the use of forward-looking terminology
such as "may," "can", "will," "would," "should," "could," "seek," "expect,"
"anticipate," "project," "projection," "estimate," "intend," "continue," "provide,"
"potentially provide," "target," "plan," or "believe" or the negatives thereof or other
variations thereon or comparable terminology. Due to various risks and uncertainties, including
those set forth under the caption "Risk Factors and Potential Conflicts of Interest" in the
PPM or in the Form ADV Part 2 maintained by First Reserve, actual events or results or the
actual performance of the Fund may differ materially from those reflected or contemplated in
such forward-looking statements.
Certain information contained in the Information (including certain forward-looking
statements and economic and market information) has been obtained from published sources,
non-published sources and/or prepared by other parties, which in certain cases has not
been updated through the date hereof. While such sources are believed to be reliable for
the purposes used in the Information, none of First Reserve, the Fund, any other First
Reserve-sponsored fund, the general partner of the Fund or any First Reserve-sponsored
fund or any of their respective directors, employees, members, partners, shareholders or
any affiliate of the foregoing assumes any responsibility for the accuracy or completeness
of such information.
The information regarding First Reserve portfolio companies and/or investment vehicles
contained in the Information is summary in nature and contains certain projections and
estimates regarding the future performance and events of First Reserve portfolio companies
and/or investment vehicles. Such projections and estimates are not a guarantee of future
performance and there can be no assurance that First Reserve’s current or future portfolio
companies and/or investment vehicles will achieve comparable results or their investment
objectives or return any capital to investors. While First Reserve’s projections in the
Information are based on assumptions that it believes are reasonable in light of the information
presently available, there is no guarantee that the conditions on which such assumptions
are based will materialize, and the actual results will depend on, among other factors, future
market conditions and the future supply and demand characteristics of the assets, all of
which may differ from the assumptions on which such projections are based. Such assumptions
(and the resulting analyses and projections) may require modification as additional information
becomes available and as economic and market developments warrant, which information may only
become available after you have decided to invest. Any such modification could be either
favorable or adverse. The projections have been prepared and are set out for illustrative
purposes only, and do not constitute a forecast. They have been prepared based on First Reserve’s
current understanding of the intended future operations of the First Reserve-sponsored buyout
funds’ portfolio companies and portfolio companies in which such buyout funds (including the Fund)
may invest, First Reserve’s current view of certain future events and financial performance of
such portfolio companies and various estimates and assumptions made by First Reserve, including
estimates and assumptions about events that have not occurred, any of which may prove to be
incorrect. Therefore, the projections are subject to uncertainties, changes (including changes
in economic, operational, regulatory, political or other circumstances or the management of
portfolio companies) and other risks, including without limitation the risks set forth in the
PPM, any of which may cause the relevant actual, financial and other results to be materially
different from the results expressed or implied by such projections. Industry experts may
disagree with the projections, the estimates and assumptions used in preparing the projections
or First Reserve’s view of the potential investments described herein. No assurance,
representation or warranty is made by any person that any of the projections will be achieved
and no recipient should rely on the projections. None of First Reserve, its affiliates or any
of their respective directors, officers, employees, partners, shareholders, advisers and agents
makes any assurance, representation or warranty as to the accuracy of the projections. Nothing
contained in in the Information may be relied upon as a guarantee, promise or forecast or a
representation as to the future. Additional information regarding the investments discussed
herein is available upon request.
Neither First Reserve nor any of its affiliates or agents is making any express or implied
representation or warranty as to (a) the accuracy, completeness, sufficiency, timeliness,
suitability, availability or reliability of the information hereon or (b) the merchantability,
fitness for a particular purpose, use or non-infringement of intellectual property and proprietary
rights with respect to any of the information. In particular, the information is provided "as is"
and "as available." First Reserve does not assume any obligation to, and may not, update or
correct any Information even if First Reserve is aware that such Information is inaccurate,
incomplete, insufficient, outdated, unsuitable, unavailable or unreliable. First Reserve may
change all or any portion of the Information at any time without notice to you. Accordingly,
if you wish to rely on the Information available on the Website, you do so entirely at your
You hereby represent and warrant to First Reserve that you are a "qualified purchaser"
as defined in Section 2(a)(51) of the United States Investment Company Act of 1940, as amended
and an "accredited investor" within the meaning of Rule 501 of Regulation D under the United
States Securities Act of 1933, as amended. You covenant and agree that, should your status as
a "qualified purchaser" or "accredited investor" change, you shall notify First Reserve
immediately of such change and you will then promptly destroy all materials obtained from the
Website and any copies thereof and will no longer have access to the Website.
You represent and warrant to First Reserve that you have the power and authority to enter
into and agree to the terms and conditions set forth in this Agreement on behalf of yourself
and any organization on whose behalf you use the Website and you shall use the Website only
as set forth in this Agreement.
1. Changes to the Agreement.
First Reserve reserves the right to revise this Agreement at any time and for any reason.
Such revisions will be effective immediately. You will be notified of all material changes to this
Agreement but you will not be notified of minor or technical revisions or corrections. Your use of the
Service following the posting of changes will mean that you accept and agree to any new terms.
to the Service.
You accept that First Reserve has the right to change,
at any time and for any reason without notice or obligation, the content and information
available on the Website and/or through the Service, including, but not limited to,
documents, text, images, photographs, illustrations, multimedia, charts, indices,
reports, studies, data, other posted materials and/or any attachments thereto (collectively,
"Information") or technical specifications of any aspect of the Service. You further
accept that such changes may result in your being unable to access the Service. The failure
of First Reserve to exercise or enforce any right or provision of the Agreement shall
not constitute a waiver of such right or provision.
First Reserve has an Acceptable Use Policy ("AUP"), which
sets forth permitted and prohibited uses of the Service. The terms of the AUP are set
out below and are subject to modification from time- to-time. The AUP is part of First
Reserve’s overall effort to: (i) provide high quality service to authorized users of
the Service; (ii) protect the integrity, security, reliability and privacy of the
Service, this Website and the network of computers using the Service (collectively,
the "System"); and (iii) encourage responsible, lawful use of the resources of First
Reserve and First Reserve’s licensors and Internet service provider. You agree to abide
by the terms of the AUP. First Reserve reserves the right to determine, in its sole
discretion, whether a use of the Service is in violation of the AUP. First Reserve reserves
the right to monitor the Service and, when First Reserve becomes aware of a violation
or attempted violation of the AUP, to take such action as it deems appropriate to address
Use of the Service requires that you use a password at all times.
You are solely responsible for: (a) maintaining the security of your password and may not
disclose your password to others; (b) any use of or action taken under your password,
including, but not limited to, any e-mail or Information (as defined herein) transmitted
by you or through use of your password, whether or not you have authorized such use; and
(c) logging-off each time you finish using the Service by clicking the LOGOUT link. Any
violation or attempted violation of the AUP by any third party having access to the Service
through you or by using your password will be considered a violation by you, whether or
not such access was obtained with your knowledge or consent. You agree to notify First
Reserve immediately of any unauthorized use of your password or any other breach of security
about which you are aware.
and No Reproduction/ Redistribution.
The Information is being furnished
to potential and current investors on a confidential basis and subject to certain restrictions
set forth in the Confidentiality Agreement, as well as those restrictions in this Agreement.
You may view and print individual records, but mass download of Information from the Website
and/or distribution to any third party of any Information from the Website in any manner is
Uses. The following are examples of types of uses of the
Service that are prohibited under the AUP:
i. Illegal/Criminal Activity
You may not use the Service to commit, or in connection with, criminal or civil violations
of federal, state, local, or international laws, regulations, or other governmental
requirements. Such violations include, but are not limited to, violations of securities
laws, including, but not limited to, regulations of the SEC or any securities exchange;
theft or infringement of patents, copyrights, trademarks, trade secrets, or other types
of intellectual property; fraud; forgery; theft or misappropriation of funds or information;
violation of export control laws or regulations; encouraging conduct that would
constitute a criminal offense or give rise to civil liability; and assisting or permitting
any third parties engaged in or attempting to engage in any of the activities described above.
First Reserve reserves the right to report any activity that may violate any law or regulation
to appropriate law enforcement officials, regulators or other third parties. In order to
cooperate with governmental requests into possible violations of laws or regulations, First
Reserve may access and disclose to law enforcement officials, regulators or other third
parties, any information First Reserve considers necessary and appropriate.
ii. Security Violations
You are prohibited from violating, or attempting to violate, the security of the Service
or the Website. Any such violations may result in criminal and civil liabilities to you.
Examples of prohibited security violations include, but are not limited to: (a) logging
into a server or account that you are not authorized to access; (b) accessing data or
taking any action to obtain services not intended for you or your use; (c) attempting
to probe, scan, or test the vulnerability of any system, subsystem or network related
to the Service or the Website; (d) tampering, hacking, modifying or otherwise corrupting
or breaching security or authentication measures; (e) transmitting material that contains
viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming
routines or engines with the intent or effect of damaging, destroying, disrupting or
otherwise impairing a computer’s functionality or the operation of the Service or Website;
and (f) interfering with, intercepting or expropriating any system, data or information;
iii. Other Prohibited Conduct
You further agree that when using the Service, you will not do any of the following:
(a) falsify or delete any author attributions or proprietary or legal notices; or (b)
use another’s password without permission or impersonate another person.
Violations of the AUP may result in a demand by First Reserve for immediate
temporary or permanent filtering, blocked access, suspension or termination of Service, or
other action appropriate to the violation, as determined by First Reserve in its sole discretion.
First Reserve will cooperate with law enforcement agencies if unlawful activity is suspected.
Violators of the AUP may also be subject to civil or criminal liability under applicable law.
When feasible and lawful, it is First Reserve’s preference to give notice that violations
may be addressed voluntarily; however, First Reserve reserves the right to act without notice as
First Reserve may determine in its sole discretion.
First Reserve, in its sole discretion, may terminate your access to the Service,
or any portion thereof, without notice for any reason, including, but not limited
to, if First Reserve believes that you have breached the AUP. First Reserve reserves
the right to terminate your access upon notice if you violate the policies of the
Website’s Internet service provider.
Any complaints regarding violations of the AUP by a user should be
directed to the legal department of First Reserve. Where possible, all complaints should
include details that would assist First Reserve in investigating and resolving the complaint
(e.g., expanded headers and a copy of the offending transmission). Please contact the
First Reserve help desk.
The Service, the Website and the Information are all protected
by copyright, trademark, service mark, international treaties and/or other proprietary
rights and laws of the U.S. and other countries. You have no rights or license in or to
the Service, Website and/or Information other than a limited, non-exclusive license to
utilize the Service and Information (and to make minimal copies of content from the Service)
for your own personal use in accordance with this Agreement and he Confidentiality
Agreement. The trademarks on the Website are proprietary to First Reserve or their
We do not permit others to link to or frame the Website or any
portion thereof. We are not responsible for the content of any website that links to
or frames the Website.
Additional Restrictions on Use.
YOU WILL NOT USE THE SERVICE OR THE WEBSITE OR THE
INFORMATION IN UNSOLICITED MAILINGS OR SPAM MATERIAL OR SEND UNSOLICITED MAILINGS OR SPAM
TO ANY PERSON OR ENTITY USING THE SERVICE OR THE WEBSITE. You may not use the Service
or the Website or the Information for any illegal purpose or in any manner inconsistent
with this Agreement. You agree not to use, transfer, distribute or dispose of any Information
in any manner that could compete with the business of First Reserve. You acknowledge that
the Service has been developed, compiled, prepared, revised, selected and arranged by First
Reserve or its suppliers of content or otherwise, shareholders, principals, partners,
directors, officers, employees, members, managers, affiliates, agents, subcontractors,
and third-party agents (the "Related Parties") through the application of methods and
standards of judgment developed and applied through the expenditure of substantial time,
effort and money and that the Service constitutes valuable intellectual property and trade
secrets of First Reserve. You agree to protect the Intellectual Property Rights of First
Reserve and all others having rights in the Service and the Website during and after the
term of this Agreement and to comply with all reasonable written requests made by First
Reserve or its suppliers of content or otherwise (the "Suppliers") to protect their and
others’ contractual, statutory and common law rights (including Intellectual Property Rights)
in the Service and the Website. You agree to notify First Reserve in writing promptly upon
becoming aware of any unauthorized access to or use of the Service or the Website by any party
or of any claim that the Service or the Website infringes upon any contractual, statutory or
common law rights (including Intellectual Property Rights).
Limitation of Liability, Waiver, Release and Indemnification.
YOU AGREE THAT YOUR USE OF THE SERVICE, THE WEBSITE AND THE INFORMATION IS PROVIDED "AS IS" AND "AS AVAILABLE,"
WITH NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE ITEMS, INCLUDING, BUT NOT
LIMITED TO, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE, NOR DOES FIRST
RESERVE MAKE ANY WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED AS TO NON-INFRINGEMENT AND TITLE.
First Reserve does not guarantee the integrity, security, reliability or privacy or the
sequence, accuracy, completeness or timeliness of the Website or the Service or warrant that
the Service or the Website are compatible with your equipment, are free of errors or viruses,
worms or "Trojan horses," or any other harmful, invasive, or corrupted files.
FIRST RESERVE AND ITS RELATED PARTIES ARE NOT LIABLE TO YOU FOR DIRECT, INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR ANY OTHER DAMAGES IN CONNECTION WITH THE
WEBSITE, INFORMATION OR THE SERVICE EVEN IF FIRST RESERVE HAS BEEN ADVISED SPECIFICALLY OF
THE POSSIBILITY OF SUCH TYPES OF DAMAGES. Applicable law may not allow the limitation or
exclusion of liability for a type of damage in which event First Reserve and the Related
Parties liability for such type of damage shall be limited to the least amount permitted
such applicable law for such type of damage.
You hereby waive and release each of First Reserve and the Related Parties from any claims
arising out of or in connection with this Agreement, the Website, Information or the Service
provided hereunder. You agree to indemnify and hold harmless First Reserve and the Related
Parties from and against any and all liability and costs (including, without limitation,
attorneys’ fees and costs) incurred by any of them in connection with any claim arising out
of any breach by you of this Agreement (including your failure to comply with all or any
part of the AUP).
Either you or First Reserve may terminate the Agreement with or without cause at
any time and effective immediately upon notice. You may terminate the Agreement by discontinuing
use of the Service. Upon termination you must return to First Reserve or destroy promptly all
materials obtained from the Service and the Website and any copies thereof. Sections 6, 7, 8,
10, 13 and 17 shall survive any termination of the Agreement.
The Agreement shall be governed and construed in accordance
with the laws of the United States and the State of New York. You agree to submit to the personal
jurisdiction of the state and federal courts located in New York City with respect to any legal
proceedings that may arise in connection with the Service or this Agreement.
States Export Control & Foreign Asset Control Regulations.
First Reserve does not
represent that materials in the Service are appropriate or available for use in countries
outside the United States. If you choose to access the Service from outside the United States,
you are responsible for compliance with all applicable foreign and local laws.
The section titles in the Agreement are used solely for the convenience of you
and First Reserve and shall not affect interpretation.
If any provision of the Agreement is found invalid, illegal or unenforceable,
then that provision will be enforced to the maximum extent permissible and the remaining provisions
shall nevertheless remain in full force and effect.
Copyright © 2012 by First Reserve Corporation, All rights