Terms and Conditions – Proactive Seller Service
Last Modified: June 15, 2023
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.
Additional Terms. Client’s use of the AdviserXchange website (the “Website”) and/or Services are also governed by and subject to Consultant’s Terms of Use, Privacy Policy, and other applicable terms, conditions, limitations, and requirements on the Website (collectively, and together with the Terms of Use and Privacy Policy, the “Additional Terms”), all of which (as updated and modified over time and from time to time) are incorporated into these Terms and apply to Client.
Acceptance of Terms. Please read these Terms carefully. By upgrading Client’s Marketplace account or otherwise agreeing to these Terms, Client accepts and agrees to be subject to and bound by these Terms and the Additional Terms (including, but not limited to, Client’s payment, indemnification, and other obligations in favor of Consultant and its Representatives (as such term is defined in the Terms of Use)), and further agrees to fully adhere to and abide by these Terms and the Additional Terms in all respects; provided, however, that in the event of any conflict between these Terms and the Additional Terms, these Terms will govern and control.
1. Services. During the Term (as hereinafter defined), Consultant will from time to time: (a) consult with Client on matters relating to the sale, merger/affiliation, and/or planned transition of or with respect to one or more investment, financial, or related businesses directly or indirectly owned, in whole or in part, by Client (individually and collectively, the “Business”); and (b) provide assistance in the marketing and promotion of the Business to Candidates (as hereinafter defined) that may have an interest in buying the Business or otherwise helping Client achieve Client’s stated objective(s) (the “Client Objectives”) (each, a “Service” and collectively, the “Services”). As part of or in connection with the Services, Consultant will or may, and is hereby authorized by Client to: (i) market and promote the Business in any way it deems appropriate to any potential buyers, merger/affiliation partners, and/or successors wherever located (each, together with their respective subsidiaries, affiliates, partners, and other affiliated Persons, a “Candidate” and collectively, the “Candidates”), (ii) provide and/or disclose, in connection with the marketing and promotion of the Business, all Information (as hereinafter defined), including, without limitation, all Business and Client information, that Consultant, in its sole discretion, deems appropriate, to any such Candidates, (iii) identify and preliminarily screen for those Candidates that have an interest in helping Client achieve the Client Objectives and appear to be appropriately qualified with respect to the Business and/or otherwise appear capable of helping Client achieve the Client Objectives, (iv) provide Client with preliminary information on those interested Candidates that have been deemed by Consultant to be appropriately qualified with respect to the Business and/or otherwise appear capable of helping Client achieve the Client Objectives, (v) assist with introductions and interactions between Client and Candidates, and (vi) engage in and assist Client with such other activities as 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, Client acknowledges, understands, and agrees that (A) Consultant does not warrant or guarantee any results from the performance of the Services, (B) if Consultant is unable or unwilling to help Client find a suitable Candidate pursuant to these Terms, Consultant’s sole obligation with respect to such Service will be limited to advising Client that Consultant is unable or unwilling to find such a Candidate, and (C) the Services do not include any documentation or related services for any contemplated transaction or other business arrangement that comes about as a result of the performance of the Services. It is also understood and agreed that Consultant’s engagement hereunder is non-exclusive, and that 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 obligation of Client to Consultant pursuant to these Terms, the Additional Terms, or otherwise (e.g., without limitation, Client’s obligation to notify Consultant in writing at least ten (10) days prior to the expected consummation date of any Transaction (as such term is defined in the Terms of Use) and/or the entering into of any Succession Plan (as such term is defined in the Terms of Use)).
2. [Intentionally Omitted.]
3. Term; Cancellation of Service. These Terms will be effective from the date Client upgraded Client’s 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 Client gives written notice of termination to Consultant at least thirty (30) days prior to the expiration of the Initial Term or any Renewal Period. A termination initiated by Client will be in the form and manner as specified on the Website (or by 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, Consultant may, at any time after the Initial Term, terminate these Terms by providing at least thirty (30) days prior written notice to Client; and these Terms will automatically terminate upon the consummation of the sale of the entire Business. 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. Client will cooperate with 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 Consultant to enable Consultant to perform the Services. Client acknowledges and agrees that Consultant’s performance is dependent on the timely and effective satisfaction of Client’s responsibilities hereunder and timely decisions and approvals of Client in connection with the Services.
5. Accuracy and Completeness of Information. Client recognizes and confirms that, in performing the Services, Consultant: (a) will use and rely on the accuracy and completeness of the Information provided or otherwise made available to Consultant by 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 Client or any third party (including, without limitation, any Candidate) if such Information is inaccurate or incomplete. Further, Client acknowledges and agrees that 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, Consultant will not be responsible for, and 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, Client acknowledges, agrees, and stipulates that: (a) 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 Consultant to perform the Services, Client understands and accepts sole responsibility to consult with Client’s own legal counsel and tax and accounting professionals or otherwise seek and obtain the services of such professionals acceptable to Client in connection with all such matters involving the Services. Client further acknowledges and agrees that the services of such legal, tax, and accounting professionals will be procured by Client at Client’s sole cost and expense, and that such cost and expense is not included in any fees payable to Consultant pursuant to these Terms or otherwise.
7. Independent Contractor. Client acknowledges and agrees that: (a) Consultant has been retained solely to provide the Services and will act as an independent contractor and not as an employee of Client; and (b) the Services will be performed by Consultant at its principal place of business or such other locations as determined by Consultant in its sole and absolute discretion.
8. Limitation on Warranties. THIS IS A SERVICES ENGAGEMENT. CONSULTANT WARRANTS THAT IT WILL PERFORM THE SERVICES IN GOOD FAITH AND IN A PROFESSIONAL MANNER. CONSULTANT DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CLIENT’S EXCLUSIVE REMEDY FOR ANY BREACH OF THIS WARRANTY WILL BE FOR 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 CONSULTANT HEREUNDER WITH RESPECT TO THE SERVICES GIVING RISE TO SUCH BREACH.
9. Limitation on Damages. Client agrees that Consultant and its Representatives, affiliates, subcontractors, and their respective personnel (collectively, the “Consultant Affiliates”) will not be liable to 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 Client to Consultant pursuant to such engagement. Further, in no event will 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 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 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 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.
