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Last Modified: July 22, 2019
Welcome to the terms and conditions for the Valuation Consulting service (these “Terms”). These Terms are between you (the “Client”) and ENTERPRISE FINANCIAL PARTNERS, LLC, a Missouri limited liability company sometimes doing business as AdviserXchange (the “Consultant” or “AX”) and govern our respective rights and obligations.
1. Services. The Consultant shall, upon the Client’s request, provide the following consulting services to the Client:
Up to three (3) total hours of scheduled time, in the aggregate, with a representative of the Consultant for the purposes of preparing and/or providing:
(a) a limited scope, summary analysis report reflecting the potential valuation range and most likely marketplace value of an investment or financial advisory business, directly or indirectly owned, in whole or in part, by the Client and/or one or more individuals or entities affiliated with or specified by the Client, based upon the Information (as hereinafter defined) provided to the Consultant by the Client pursuant to these Terms (the “Report”);
(b) guidance on enhancing the value of an investment or financial advisory business in the marketplace;
(c) a general overview of the primary valuation approaches and deal structures used by buyers in the marketplace;
(d) a valuation and deal structure worksheet (the “Worksheet”) that can be used by the Client for the limited purpose of conducting analyses of investment and financial advisory businesses; and
(e) a letter of intent template document (the “LOI Template”) that can be used by the Client and the Client’s legal counsel for the limited purpose of proposing deal terms to, and facilitating discussions with, acquisition and succession candidates (each, a “Service” and collectively, the “Services”).
The Client understands and agrees that all work product and templates (collectively, the “Documentation”) produced for or provided to the Client pursuant to the Services shall remain the property of the Consultant and, except for the purposes described in Section 1(e), the Documentation may not be shared, published or redistributed in any way, without (i) the express written consent of the Consultant and (ii) the payment of any additional fees required by the Consultant.
2. Consulting Fee. The Client agrees to pay to the Consultant $995.00 (the “Consulting Fee”) for the performance of the Services. The Consultant will, unless otherwise agreed, process the Client’s payment of the Consulting Fee using the Consultant’s designated merchant account provider or other approved method of payment. The Client further agrees to pay to the Consultant an hourly rate of $250.00 per hour for each hour or portion thereof in excess of the three (3) hours of time made available to the Client to perform the Services pursuant to these Terms. All such fees are non-refundable.
3. Completion Time. The Services shall be performed by the Consultant as soon as practicable after a request for a Service is made, and in any event within thirty (30) days after the Consultant’s receipt of all the Required Information (as hereinafter defined) from the Client, or as otherwise agreed to between the parties hereto; provided, however, that if the Client does not request all of the Services or provide the Consultant with all such Required Information within one (1) year after purchasing the Services (the “Anniversary Date”), and unless otherwise agreed to in writing by the parties hereto, the Consultant shall be deemed to have earned its base fee, fulfilled its obligations hereunder and thereafter have no further obligation to the Client with respect to these Terms or the Services; provided further, however, that the Client may request a copy of the Worksheet and LOI Template document, provided a written request is made to the Consultant within ten (10) days after the Anniversary Date.
4. Client Cooperation; Required Information. The Client shall cooperate with the Consultant in all reasonable respects in matters relating to the provision of the Services. Such cooperation shall include, without limitation, the prompt delivery of all the information, documentation and data (collectively, the “Information”) required by the Consultant to enable the Consultant to perform the Services (the “Required Information”). The Client acknowledges and agrees that the Consultant’s performance is dependent upon the timely and effective satisfaction of the Client’s responsibilities hereunder. The Client further acknowledges and agrees that (a) the Consultant has been retained solely to provide the Services set forth in these Terms and shall act as an independent contractor and not as an employee of the Client, and (b) the Services shall be performed by the Consultant at its principal place of business or such other locations as determined by the Consultant in its sole discretion.
5. No Legal, Tax or Accounting Services. Notwithstanding the foregoing or any other provision or term to the contrary in these Terms or otherwise, the Client acknowledges, agrees and stipulates that: (a) the Consultant does not offer or provide legal, tax or accounting advice or services and will not provide any such advice or services in connection with the Services; and (b) by purchasing the Services, the Client understands and accepts sole responsibility to consult with the Client’s own legal counsel and tax and accounting professionals or otherwise seek and obtain the services of such professionals acceptable to the Client in connection with all such matters involving the Services. The Client further acknowledges and agrees that the services of such legal, tax and accounting professionals shall be procured by the Client at the Client’s sole cost and expense and that such costs and expense is not included in any fees payable to the Consultant pursuant to these Terms or otherwise.
6. Accuracy and Completeness of Information. The Client recognizes and confirms that, in performing the Services, the Consultant: (a) will use and rely on the accuracy and completeness of the Information provided or otherwise made available to the Consultant by the Client without having any obligation to independently verify the accuracy or completeness of such Information; and (b) does not assume responsibility for the accuracy or completeness of the Client’s Information and shall not have any liability to the Client or any third party if such Information is inaccurate or incomplete. Further, the Client acknowledges and agrees that the Consultant may use third party service providers, as well as information and data obtained from others, to assist with the completion of the Services; however, the Consultant shall not be responsible for, and the Consultant makes no warranties, express or implied, regarding any such services, and takes no responsibility for, and provides no assurances regarding, the accuracy, completeness, timeliness or reliability of any such information or data.
7. Limitation on Warranties. THIS IS A SERVICES ENGAGEMENT. THE CONSULTANT WARRANTS THAT IT SHALL PERFORM THE SERVICES IN GOOD FAITH AND IN A PROFESSIONAL MANNER. THE CONSULTANT DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE CLIENT’S EXCLUSIVE REMEDY FOR ANY ERRORS OR INACCURACIES WITH RESPECT TO THE SERVICES AND THE DELVERABLES PROVIDED BY THE CONSULTANT IN CONNECTION WITH THESE TERMS (THE “DELIVERABLES”) SHALL BE FOR THE CONSULTANT TO USE COMMERCIALLY REASONABLE EFFORTS TO CORRECT, OR CAUSE TO BE CORRECTED, SUCH DELIVERABLES, AS PROMPTLY AS POSSIBLE, PROVIDED THE CONSULTANT RECEIVES WRITTEN NOTICE FROM THE CLIENT OF SUCH ERRORS OR INACCURACIES WITHIN TEN (10) DAYS AFTER RECEIVING SUCH FINAL DELIVERABLES.
8. Limitation on Damages. The Client agrees that the Consultant and its Representatives and other affiliated parties (collectively, the “Affiliates”) shall not be liable to the Client for any claims, liabilities, damages, judgments, awards, losses, costs or expenses relating to an engagement for the Services (“Claims”) for an aggregate amount in excess of the fees paid by the Client to the Consultant pursuant to such engagement. In no event shall the Consultant or its Affiliates be liable for any loss of use, data, goodwill, revenues or profits (whether or not deemed to constitute direct Claims) or any consequential, special, indirect, incidental, punitive or exemplary loss, damage or expense relating to this engagement, the Services and/or these Terms.
9. Notices. The parties agree that any notice, request, consent, claim, demand, waiver, change in contact or other written communication to be provided pursuant to these Terms and/or applicable laws shall be in writing and delivered to the applicable party in person or at their address, facsimile number or e-mail address provided with the purchase of the Services, or at such other address, facsimile number or e-mail as any party hereto may designate as their address, facsimile number or e-mail for communications under these Terms by notice so given in accordance with this Section 9. Such notices shall be deemed effective on the day on which delivered if delivered in person, on the day on which sent if sent by facsimile or e-mail, on the first (1st) business day after the day on which sent, if sent by recognized overnight courier and on the third (3rd) business day after the day on which mailed if mailed by U.S postal service first class mail, postage prepaid.
10. Modification and Waiver. These Terms can be modified by the Consultant at any time, except that the terms and conditions in effect for the Services at the time of purchase will apply to the purchase of the Services. No failure or delay on the part of the Consultant in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The rights and remedies provided for herein are cumulative and are not exclusive of any rights and remedies that may be available to the Consultant at law, in equity or otherwise.
11. Headings; Severability. Headings used in these Terms are for convenience only and are deemed not to be a part of these Terms. If any part or portion of these Terms shall be declared invalid or unenforceable by any court of competent jurisdiction, the remaining part or portion thereof shall remain in full force and effect.
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