Terms and Conditions – Adviser Financing Service
Last Modified: September 23, 2020
Welcome to the terms and conditions for the Adviser Financing Service (these “Terms”). These Terms are between you, individually and on behalf of any Person (as hereinafter defined) that employs you and/or that you represent in connection with the Services (as hereinafter defined) (individually and collectively, the “Client”), and ENTERPRISE FINANCIAL PARTNERS, LLC, a Missouri limited liability company sometimes doing business as AdviserXchange (the “Consultant”), and govern our respective rights and obligations.
1. Services. During the Term (as hereinafter defined) hereof, the Consultant will, on an ad hoc basis, consult with and assist the Client in procuring loans, funding, and other financing (each, a “Loan” and collectively, the “Loans”) from Lenders (as hereinafter defined) for the direct and indirect benefit of the Client and the Client Affiliates (as hereinafter defined) (collectively, the “Services”). As part of or in connection with the Services, the Consultant will or may, and is hereby authorized by the Client to: (a) identify banks, commercial lenders, and other financing sources of any kind or type (each, together with their respective subsidiaries, affiliates, correspondents, and other affiliated Persons, a “Lender” and collectively, the “Lenders”) that may have an interest in the Client’s Loan needs and requests, (b) submit the Client’s Loan needs and requests, and all other Information (as hereinafter defined), including, without limitation, the Client’s and any Client Affiliate’s financial and personal credit information, that the Consultant, in its sole discretion, deems appropriate, to any such Lenders for their review and consideration, (c) assist with introductions and interactions between the Client and Lenders, and (d) engage in and assist the Client with such other activities as the Consultant, in its sole discretion, deems necessary or appropriate to perform the Services. Notwithstanding the foregoing or anything contained in these Terms to the contrary, the Client acknowledges, understands, and agrees that (i) the Consultant does not warrant or guarantee any results from the performance of the Services and (ii) if the Consultant is unable or unwilling to assist the Client with the procuring of any Loan need or request pursuant to these Terms, the Consultant’s obligation will be limited to advising the Client that the Consultant is unable or unwilling to procure such Loan. It is also understood and agreed that the Consultant’s engagement hereunder is non-exclusive, and that the Client retains the right to engage other parties to render services similar to the activities contemplated hereby. The engagement of any such party will not, however, affect any fees payable to the Consultant pursuant to these Terms.
2. Consulting Fee. If at any time before, during, or after the Term hereof, the Client or any Client Affiliate (a) receives or accepts a commitment for any Loan from any Lender to whom the Consultant or any Cooperating Person (as hereinafter defined) submitted any Client or Client Affiliate Loan need or request, (b) receives or accepts a commitment for any Loan from any Lender referred to, introduced to, or otherwise brought to the attention of the Client or any Client Affiliate by the Consultant or any Cooperating Person, (c) receives or accepts a commitment for any Loan from any Lender that the Client or any Client Affiliate became aware of, or that became aware of the Client or any Client Affiliate, as a direct or indirect result of the services or other activities of the Consultant or any Cooperating Person, (d) receives or accepts a commitment for any Loan in which the Consultant provided guidance, assistance, or any other service to the Client or any Client Affiliate in connection therewith, or (e) renegotiates any term or provision of any Loan in which the Consultant provided guidance, assistance, or any other service to the Client or any Client Affiliate in connection therewith, then, in each case, the Client will immediately have an obligation to pay, and will immediately pay, or cause to be paid, to the Consultant a consulting fee equal to the greater of (i) two percent (2%) of the face amount of the Loan made or committed to be made by such Lender (in each case as applicable) or (ii) $5,000.00 (such greater amount, the “Consulting Fee” and collectively, the “Consulting Fees”). The Client acknowledges and agrees that higher percentage and minimum Consulting Fees and/or additional fees and retainers (collectively, the “Additional Fees”) may also from time to time be required by the Consultant for any Loan or related consulting services and/or activities requested by the Client that, in the sole discretion of the Consultant, exceed the scope of the Services described in Section 1 above (collectively, the “Supplemental Services”). In such instances, the Supplemental Services will be documented separately by the parties, and any Additional Fees will be due and payable on demand or as otherwise specified by the Consultant. All fees and retainers (including, without limitation, the Additional Fees) are non-refundable. The Client further acknowledges and agrees that the Consultant may also: (A) receive additional compensation from the Lenders based upon the Loan program(s) and terms the Client accepts; (B) participate in other Loan transactions with the Lenders and receive a fee or other compensation from the Lenders in regard to such Loan transactions; and (C) pay unrelated parties a fee or other compensation in connection with any Loan transaction contemplated herein. The Client hereby covenants and agrees to notify the Consultant in writing immediately upon closing or accepting a commitment for any Loan. The Client also covenants and agrees to provide the Consultant with copies of all executed Loan documents (including, without limitation, any accepted Loan commitments) immediately after the execution of such Loan documents.
3. Term; Cancellation of Service. These Terms will be effective from the date the Client requested a consultation with the Consultant or otherwise engaged the Consultant to provide the Services (the “Effective Date”) through the one (1) year anniversary date of the Effective Date (such one year period, the “Initial Term”), and will automatically renew for additional one (1) year periods (i.e., each subsequent anniversary date of the Effective Date) (each, a “Renewal Period”, and together with the Initial Term, the “Term”), unless earlier terminated in accordance with these Terms or the Client gives written notice of termination to the Consultant at least thirty (30) days prior to the expiration of the Initial Term or any Renewal Period. A termination initiated by the Client will be in the form and manner as specified on the Website (or by the Consultant if such information is not available on the Website) and effective as of the last day of the then-current Engagement Period (as hereinafter defined). Further, the Consultant may, at any time after the Initial Term, terminate these Terms by providing at least thirty (30) days prior written notice to the Client. The Client acknowledges and agrees that, except for providing the Services pursuant to Section 1 of these Terms, all other provisions of these Terms will survive the expiration or earlier termination of these Terms for any reason.
4. Client Responsibilities. The Client will cooperate with the Consultant and, when applicable, any Cooperating Person in all reasonable respects in matters relating to the provision of the Services. Such cooperation will include, without limitation, the prompt delivery of all information and documentation (collectively, the “Information”) requested or otherwise required by the Consultant to enable the Consultant to perform the Services. The Client will also complete, execute, and deliver to the Consultant such forms, applications, and authorizations, including, without limitation, authorizations for personal credit reports on the Client, that may, from time to time, be requested by the Consultant in connection with the Services. The Client acknowledges and agrees that the Consultant’s performance is dependent upon the timely and effective satisfaction of the Client’s responsibilities hereunder and timely decisions and approvals of the Client in connection with the Services.
5. 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 Information and will 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 will 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.
6. No Legal, Tax, or Accounting Advice or Services. Notwithstanding any term or provision 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 engaging the Consultant to perform 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 will be procured by the Client at the Client’s sole cost and expense, and that such cost and expense is not included in any fees payable to the Consultant pursuant to these Terms or otherwise.
7. Independent Contractor. The Client acknowledges and agrees that: (a) the Consultant has been retained solely to provide the Services and will act as an independent contractor and not as an employee of the Client; and (b) the Services will be performed by the Consultant at its principal place of business or such other locations as determined by the Consultant in its sole and absolute discretion.
8. Limitation on Warranties. THIS IS A SERVICES ENGAGEMENT. THE CONSULTANT WARRANTS THAT IT WILL 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 BREACH OF THIS WARRANTY WILL BE FOR THE CONSULTANT, UPON RECEIPT OF WRITTEN NOTICE, TO USE GOOD-FAITH EFFORTS TO CURE SUCH BREACH, OR, FAILING ANY SUCH CURE IN A REASONABLE PERIOD OF TIME, THE RETURN OF ANY UNEARNED FEES OR RETAINERS PAID TO THE CONSULTANT HEREUNDER WITH RESPECT TO THE SERVICES GIVING RISE TO SUCH BREACH.
9. Limitation on Damages. The Client agrees that the Consultant and its Representatives, affiliates, subcontractors, and their respective personnel (collectively, the “Consultant Affiliates”) will 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. Further, in no event will the Consultant or the Consultant 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 (including, without limitation, lost profits and opportunity costs), relating to this engagement, the Services, and/or these Terms.
10. Modification and Waiver. These Terms can be modified by the Consultant at any time; provided, however, that the terms and conditions in effect for the Services at the time of engagement will apply until the following Renewal Period, at which time the modified Terms will apply. No failure or delay on the part of the Consultant in exercising any right, power, or remedy hereunder will operate as a waiver thereof, nor will 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. 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 must be in writing and delivered to the applicable party in person or at their address, facsimile number, or email address provided with the engagement for the Services, or at such other address, facsimile number, or email as any party hereto may designate as their address, facsimile number, or email for communications under these Terms by notice so given in accordance with this Section 11. Such notices will be deemed effective on the day on which delivered if delivered in person, on the day on which sent if sent by facsimile or email, 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.
12. Headings; Severability. Headings used in these Terms are for convenience only and are not to be construed as part of these Terms. If any part or portion of these Terms is declared invalid or unenforceable by any court of competent jurisdiction, the remaining part or portion thereof will remain in full force and effect.
13. Miscellaneous Definitions. Capitalized terms used herein and not otherwise defined in the context in which they are used have the meanings ascribed to them below and apply equally to the singular and plural forms of such terms.
“Client Affiliate” means any Person that, directly or indirectly through one or more intermediaries, is in control of, is controlled by, or is under common control with, the Client. For the purposes of this definition, the term “control” (including, with correlative meanings, the terms “controlling,” “controlled by,” and “under common control with”), as used with respect to any Person, means the power, directly or indirectly, either to (a) vote 5% or more of the securities having ordinary voting power for the election of directors (or persons performing similar functions) of such Person, or (b) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise. Client Affiliate also includes, without limitation, all past, present, and future Representatives, affiliated Persons, informal partners, employers, and affiliated and associated broker-dealers, registered investment advisers, and custodians of the Client and any Client Affiliate (excluding, however, the Consultant and its affiliates and their respective Representatives), and any other Person that, in any way, directly or indirectly, benefits from the Consultant’s services or activities hereunder.
“Cooperating Person” means any recruiter, consultant, third-party advisor, or other Person (including, without limitation, any other client of the Consultant) that, in any manner, directly or indirectly, whether before, during, or after the Term of this Agreement: (a) assists or attempts to assist the Consultant in the performance of the services hereunder; (b) is referred to, introduced to, or brought to the attention of the Client or any Client Affiliate by the Consultant in connection with the activities of the Consultant or its performance of services hereunder; or (c) the Client or any Client Affiliate became aware of, or became aware of the Client or any Client Affiliate, as a direct or indirect result of the Consultant’s activities or its performance of services hereunder.
“Engagement Period” means and includes the Initial Term and any successive Renewal Period.
“Person” means any individual, corporation, limited liability company, limited or general partnership, joint venture, trust, firm, association, unincorporated organization, governmental authority, or other entity of any kind, including any successor (by merger or otherwise) of such entity, or a group of any of the foregoing acting in concert.