Terms and Conditions – Valuation Consulting Service
Last Modified: September 28, 2020
Welcome to the terms and conditions for the Valuation Consulting 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.
1. Services. The Consultant will provide up to two (2) hours of time with a representative of the Consultant for the purpose of providing the following services to the Client:
(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 (the “Business”), 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 (including the Business) in the marketplace;
(c) a general overview of the primary valuation approaches and deal structures used by buyers and sellers in the marketplace;
(d) a general overview of the Consultant’s valuation and deal structure worksheet template document (the “Worksheet Template”) that the Client may use for the limited purpose of conducting analyses of investment and financial advisory businesses; and
(e) a general overview of a letter of intent template document (the “LOI Template”) that the Client and the Client’s legal counsel may use for the limited purpose of proposing deal terms to, and facilitating discussions with, merger, acquisition, and succession candidates (each, a “Service” and collectively, the “Services”).
The Client acknowledges and agrees that the Client will identify and request the specific Service or Services to be provided after the Consultant has been engaged, and that the Report and all other work product and templates (including, without limitation, the Worksheet Template and LOI Template) (collectively, and together with the Report, the “Documentation”) produced for or otherwise provided to the Client pursuant to the Services or otherwise will remain the property of the Consultant and, except for the purposes described in Section 1(e) above and as otherwise necessary to help negotiate terms in connection with the purchase or sale of the Business, 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 $500.00 per hour for each hour, or portion thereof, in excess of the two (2) hours of time made available to the Client to perform the Services pursuant to these Terms. The Client acknowledges and agrees that additional fees and retainers (collectively, the “Additional Fees”) may also be required by the Consultant for any 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 the 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.
3. Completion Time. The Services will be performed by the Consultant as soon as practicable after a request for a Service is made by the Client, and in any event within thirty (30) days after the Consultant’s receipt of any requested or required Information 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 requested or 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 will 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 obtain a copy of the Worksheet Template and LOI Template, provided a written request is made to the Consultant within ten (10) days after the Anniversary Date.
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.
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 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 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 set forth in these Terms 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 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 ERRORS OR INACCURACIES WITH RESPECT TO THE SERVICES AND THE DELVERABLES PROVIDED BY THE CONSULTANT IN CONNECTION WITH THESE TERMS (THE “DELIVERABLES”) WILL BE FOR THE CONSULTANT TO USE GOOD-FAITH 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.
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. 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 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 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 purchase of 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.
“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.