Terms and Conditions – Proactive Seller Service
Last Modified: September 29, 2020
Welcome to the terms and conditions for the Proactive Seller 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 with respect to the Services.
2. [Intentionally Omitted.]
3. Term; Cancellation of Service. These Terms will be effective from the date the Client upgraded their Marketplace account or otherwise agreed to these Terms (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; and these Terms will automatically terminate upon the consummation of the sale of the entire Business. The Client acknowledges and agrees that, except for providing the Services pursuant to Section 1 of these Terms and as otherwise provided herein, 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 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 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 (including, without limitation, any Candidate) 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.
“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.