Terms of Use

Last Modified: June 13, 2023

Welcome to the website of AdviserXchange (the “Website”), a division of ENTERPRISE FINANCIAL PARTNERS, LLC, the legal name of the owner of the Website (“AX”, “we”, “us”, or “our”). AX operates the Website to provide information about and access to its services (each, a “Service”, and collectively, the “Services”). The terms and conditions set forth herein (these “Terms of Use”) constitute a legally binding agreement between AX and you regarding the terms on which AX offers you access to and use of the Website and Services. Additional terms and conditions may also apply to specific portions or features of the Website or Services provided by AX. All such additional terms and conditions are hereby incorporated by this reference into these Terms of Use.

Your Acceptance of these Terms of Use. Please take a few minutes to review these Terms of Use. By accessing or using the Website or Services, or by agreeing to these Terms of Use when you are presented with that option, you, individually, and you, on behalf of any Person (as hereinafter defined) that employs you and/or that you represent, agree to be bound and abide by these Terms of Use and all applicable laws and regulations governing the Website. You also represent and warrant that you reside in the United States, are of legal age to form a binding contract with AX in the state you reside, and have full and complete authority to bind yourself and any Person you represent to these Terms of Use. If you do not agree with these Terms of Use, you and any Person you represent are not authorized to access or use the Website for any purpose whatsoever. 

Legal Authority; Guaranty. If you also represent a corporation, limited liability company, partnership, trust, or other entity, person, or individual of whatever nature (each, a “Person”) that, directly or indirectly, derives any benefit from your accessing or using the Website or Services, the individual accessing or using the Website and/or accessing, using, or requesting the Services, in any case, on behalf of such Person (the “Principal”), in addition to the Person, hereby represents, warrants, and covenants that (a) the Person is a duly authorized and an existing Person within the jurisdiction(s) in which it conducts business, (b) the Principal has full right, power, and authority to enter into and accept these Terms of Use, and (c) the Principal is fully authorized to do so. Upon AX’s request, you will provide AX with evidence satisfactory to it confirming the foregoing representations, warranties, and covenants. For value received, and in consideration of, and in order to induce AX to make the Website available or perform the Services, the Principal, by accessing or using the Website or Services, hereby personally and on behalf of any applicable Person represented, absolutely, irrevocably, unconditionally, and jointly and severally covenants and guarantees to AX the full and prompt payment and performance of the Person’s obligations herein.

Engagement for Consulting Services. Notwithstanding the foregoing or anything contained in these Terms of Use to the contrary, viewing or utilizing information on the Website, or contacting or responding to our offices or consultants does not, except as expressly stated herein or elsewhere on the Website, create a consulting relationship of any kind. A consulting relationship can be established only after the following two events have been completed: (a) you agree to or otherwise accept the terms and conditions for, or enter into a written agreement with respect to, the consulting relationship (which will govern and control our consulting relationship with you); and (b) our advance receipt of any fees required pursuant to such terms and conditions or written agreement.

These Terms of Use May Change Without Prior Notice. AX reserves the right to modify these Terms of Use at any time without giving you prior notice. You acknowledge and agree that your access or use of the Website following any such modification constitutes your agreement to follow and be bound by these Terms of Use as modified. For this reason, we encourage you to review these Terms of Use whenever you access or use the Website so you are aware of any changes, as they are binding on you and any Person you represent.

Accessing the Website and Account Security. We reserve the right to withdraw or amend the Website, Services, or Content (as hereinafter defined) that we provide on the Website, in our sole discretion, without notice, unless otherwise provided in a written agreement. We will not be liable if, for any reason, all or any part of the Website is unavailable at any time or for any period.

You are responsible for:

• Making all arrangements necessary for you to have access to the Website.
• Ensuring that all persons who access the Website through your internet connection are aware of these Terms of Use and fully comply with them. To access the Website or some of the resources or Services it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the Website and any such resources and Services (including, without limitation, the creation of a Marketplace or other user account (each, an “Account” and collectively, the “Accounts”)) that all the information you provide to us upon your registration for any and all such resources and Services and at all other times is true, correct, accurate, current, and complete. Upon any changes to such information (including, for example, but without limitation, your Account and Marketplace profile or listing information), you agree to promptly and without delay notify us in writing of any such changes and/or, if access to such information is available to you for that purpose, update your information directly on the Website to keep it true, correct, accurate, current, and complete. You also agree that all information you provide to register with the Website, any resources, or Services or otherwise, including, but not limited to, through the use of any interactive features on the Website, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

If you choose, or are provided with, a username, password, or any other piece of information as part of our security procedures, you must treat such information as strictly confidential and not disclose it to any other Person. You also acknowledge and stipulate that your Accounts are personal to you and agree not to provide any other Person, directly or indirectly, with access to your Accounts or any other Service or portion of the Website using your username, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security, and you acknowledge and agree that we will not be responsible for any loss or damage of any kind, whether tangible or intangible, that results or arises from or relates to unauthorized access or your failure to notify us promptly and without delay of such unauthorized access. You also agree to ensure that you exit from your Accounts at the end of each session. You should use particular caution when accessing your Accounts from a public or shared computer so that others are not able to view or record your password or other Account information.

We have the right to disable any username, password, or other identifier, whether chosen by you or provided by us, at any time in our sole and absolute discretion for any or no reason, including, but not limited to, if, in our opinion, you have attempted or threatened to violate or violated any provision of these Terms of Use.

User Conduct; Prohibited Uses. You may use the Website only for lawful purposes and in accordance with these Terms of Use. You agree not to: (a) take any action that interferes with the proper working of the Website, imposes an unreasonable or disproportionately large load on the Website’s infrastructure, might compromise the security of the Website, renders the Website or Services inaccessible to others, or otherwise causes damage to the Website, the Services, or any Content contained on the Website; or (b) add to, subtract from, or otherwise modify the Website or the Content on the Website, except as expressly authorized by AX in these Terms of Use or by a written agreement between you and AX.

You also agree not to use the Website:

• In any way that violates any applicable federal, state, local, or international law, statute, code, act, or regulation (including, without limitation, any of the foregoing related to the export of data or software to and from the United States or other countries).
• For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate information, data, and/or content, asking for personally identifiable information or otherwise.
• To send, knowingly receive, upload, download, use, or re-use any material which does not comply with these Terms of Use.
• To transmit or procure the sending of any advertising or promotional material, including any “junk mail”, “chain letter”, or “spam”, or any other similar solicitation.
• To impersonate or attempt to impersonate AX, an AX employee or representative, another user, or any other Person (including, without limitation, by using email addresses or screen names associated with any of the foregoing).
• To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website, or which, as determined by us, may harm or threaten to harm AX or users of the Website, or may expose or threaten to expose them to liability.

Additionally, you agree not to:

• Provide false or inaccurate information, data, or content to create a user account or profile/listing.
• Use the Website in any manner that could disable, overburden, damage, or impair the Website, or interfere with another user’s use of the Website, including their ability to engage in real time activities through the Website.
• Use any robot, spider, or other automatic device, process, or means, or any manual process, to access the Website for any purpose, including monitoring or copying any of the material on the Website.
• Use any device, software, or routine that interferes with the proper working of the Website.
• Introduce any viruses, Trojan horses, malware, worms, sniping software, logic bombs, or other material which is or could be malicious or technologically harmful.
• Obtain or attempt to obtain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Website.
• Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
• Otherwise attempt to interfere or interfere with the proper working of the Website.

We may, at our sole discretion and without notice, immediately suspend or ban your access to and use of the Website and Services if we are or become aware of or suspect that you are engaged in any of the prohibited uses of the Website described in these Terms of Use.

Intellectual Property. The Website and all information, data, and/or content that you see, hear, or otherwise experience on or through the use of the Website (the “Content”) belongs to AX, its affiliates, contributors, or third parties and may be protected by U.S. and international copyright, trademark, intellectual property, and other laws. AX’s name, the term “AdviserXchange”, and all related names, logos, product, and service names, designs, and slogans are trademarks of AX or its affiliates or licensors. All other names, logos, product, and service names, designs, and slogans on the Website are the trademarks of their respective owners. If we provide desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by any end user license agreement for such applications, as applicable. Also, if we provide social media features with certain content, you may take such actions as are enabled by such features.

The Content of the Website, and the Website as a whole, is intended solely for personal, non-commercial use by the users of the Website and Services. Except for Confidential Information (as hereinafter defined) and as otherwise provided herein, you may copy, print, download, and store selected portions of the Content, provided that, except as expressly permitted by AX, you (a) only use these copies of the Content for your own personal, non-commercial use, (b) do not copy, reproduce, or post the Content on any network computer, or transmit, distribute, publish, display, or broadcast the Content in any media, including, without limitation, a website or social media account, and (c) do not alter, modify, or create derivative works of the Content in any way, or use, change, or delete any copyright or trademark notice. No right, title, or interest in any copied, printed, downloaded, or stored Content is transferred to you as a result of any such copying, printing, downloading, or storing, and all such Content will remain the property of AX or its owner (if applicable).

Any use of the Content not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws. If you violate or attempt or threaten to violate any of these Terms of Use, your permission to use the Content automatically terminates and you must immediately destroy or delete any copies you have made of any portion of the Content. Additionally, you acknowledge that any use of the Content which is not in accordance with these Terms of Use or any violation of the restrictions imposed on its use by any licensed materials would cause irreparable harm to AX for which there would be no adequate remedy at law. Accordingly, you agree that in the event of any such violation, AX will be entitled to immediate injunctive relief (temporary, preliminary, or permanent, as the case may be) against you or any Person you represent, in addition to such other rights and remedies to which it may be entitled by law. In the event any such injunction is entered, you will pay the reasonable expenses incurred by AX in obtaining such injunction, including, without limitation, reasonable attorneys’ fees and costs.

Content Not Intended for Distribution or Use Where Prohibited. The Content and other information provided on the Website is not intended for distribution to, or use by, any Person in any jurisdiction or country where such distribution or use would be a violation of, or contrary to law or regulation, or which would otherwise subject AX or its affiliates to any registration requirement within such jurisdiction or country. By posting any information to the Website or providing us with any other information, data, and/or content for use on the Website or otherwise (e.g., without limitation, your business information and any reviews or testimonials), you irrevocably and unconditionally grant us and our licensees, successors, and assigns the right to use, reproduce, edit, alter, modify, display, distribute, and otherwise disclose to third parties any such material on or through the Website, through any other media channel, or in any other manner we choose, in connection with the Services or to fulfill any other purpose for which you provide it. You understand and acknowledge that you are responsible for any information you submit to the Website, and you, and not AX, have full responsibility for the legality, reliability, accuracy, completeness, and appropriateness of such information. Information provided must not be deceptive or misrepresent your identity or affiliation with any Person in any way. We reserve the right to remove any such information or other Content posted to the Website for any or no reason, at any time, without prior notice or liability, in our sole discretion.

Neither the Content or other information contained in the Website, nor any Service accessed through the use of the Website constitutes a solicitation or offer by AX or its affiliates to buy or sell any securities, futures, options, or other financial instruments, or to provide any investment advice or related service. You are advised to seek independent advice from legal, tax, or other counsel with respect to any purchase, sale, merger, transfer, combination, joint venture, affiliation, transition, alliance, or other transaction involving a business (each, a “Transaction”), or the creation, development, negotiation, documentation, and/or implementation of a succession plan for a business (a “Succession Plan”), in any such instance, that you become aware of as a result of your use of the Website, the Services, or otherwise. You should not rely solely on opinions from AX or the Website when deciding whether to consummate a Transaction or enter into a Succession Plan, or when making any other business, financial, or personal decisions; rather, you should seek the advice, counsel, and opinion of an experienced person or firm who knows and understands your particular situation and circumstances before taking such actions or making such decisions.

Reliance on Content and Other Information Posted. The Content and other information presented on or through the Website is made available to you solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you, any other user of or visitor to the Website, or by any other Person who may be informed of any of its Content.

Additionally, AX does not warrant (and you expressly disclaim reliance upon) the accuracy, correctness, or reliability of the information, data, and/or content posted by AX or any buyer, seller, or other user of the Website or Services, or the value, quality, or condition of any business disclosed to you by AX, or disclosed, displayed, or otherwise described on or through the Website pursuant to the Services or otherwise, the details of any of the representations or statements of AX and such buyers, sellers, and other users of the Website, the Services, or otherwise, or the transition and retention of clients, client accounts, or revenues in connection with or related to the consummation of a Transaction, the entering into of a Succession Plan, or any other business transaction that came about or occurred as a direct or indirect result or consequence of your use of the Website, the Services, or otherwise.

The Website may also include information, data, and/or content provided by third parties that are not owned or controlled by AX (e.g., information, data, and/or content independent of the Website or Services), including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other information, data, and/or content, other than the Content provided by AX, are solely the opinions and responsibility of the Person providing these materials. These materials do not necessarily reflect the opinion of AX. We are not responsible or liable for, and do not warrant the information, data, and/or content or the accuracy or completeness of, any materials provided by any third parties to you or any other third party. You acknowledge and agree that AX will not be responsible or liable, directly or indirectly, for any damage, liability, cost, expense, or other loss of any kind caused or alleged to be caused by or in connection with the use of or reliance on any such information, data, and/or content, goods, or services available on or through any third-party website or services. We strongly advise you to read fully the terms and conditions and privacy policies of any third party websites that you access or visit or third party services that you obtain or receive.

Monitoring and Regulation of Messaging System; Termination of Services. We have and reserve the right to monitor and take any action with respect to any messaging or other communications between users of the Website’s messaging system that we deem necessary or appropriate in our sole discretion, including, without limitation, in circumstances where the messaging may infringe on the intellectual property right or other right of any Person, threatens the personal safety of users of the Website or the public or could create liability for AX. We also reserve the right, in our sole discretion and without notice, at any time and for any reason (including, but not limited to, any violation of these Terms of Use), to restrict, suspend, terminate, or refuse your access to or use of all or any portion of the Website or Services. In the event of restriction, suspension, or termination, there will be no refund of fees already paid. We also have the unrestricted right to disclose your identity or other information about you if required by law enforcement, any court order or subpoena, or other applicable law. YOU WAIVE, AND YOU AGREE TO RELEASE, DISCHARGE, INDEMNIFY, AND HOLD HARMLESS AX AND ITS REPRESENTATIVES (AS HEREINAFTER DEFINED), FROM ANY CLAIMS, SUITS, CAUSES OF ACTION, AND LIABILITIES RESULTING FROM ANY OF THE FOREGOING ACTIVITIES OR ANY OTHER ACTION TAKEN BY AX DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY AX OR GOVERNMENTAL OR OTHER LAW ENFORCEMENT OR REGULATORY AUTHORITIES.

Confidentiality; Remedies and Damages. You acknowledge that AX and the owner of any Confidential Information desire to maintain the confidentiality of any information disclosed to you pursuant to your access or use of the Website, the Services, or otherwise. As a condition to your receipt of any Confidential Information as a result of, or through your use of, the Website, the Services, or otherwise (including, without limitation, any Confidential Information received directly from AX, through any related website or through AX’s social media and other internet-based social networks/sites (e.g., without limitation, facebook, LinkedIn, and Twitter)), you agree (a) to receive, hold, treat, and maintain all such Confidential Information in the strictest confidence at all times, and not to disclose or permit access of any Confidential Information to any third party without the express prior written consent of AX and such other user, except as expressly provided for in any written agreement between you and AX, and (b) to exercise the highest degree of care to protect and safeguard Confidential Information (and in no event less than such degree of care that you use to protect and safeguard your own confidential, proprietary, and/or trade secret information) from and against loss, theft, or other disclosure, inadvertent or otherwise. You further acknowledge and agree that (i) any violation or threatened violation of the confidentiality obligations in these Terms of Use will cause irreparable injury to AX and the respective owner of the Confidential Information, and that, in addition to any other remedies that may be available under these Terms of Use, at law, in equity, or otherwise, AX and any other owner of such Confidential Information will be entitled to seek injunctive relief against the breach or threatened breach of these Terms of Use by you, without the necessity of proving actual damages or posting a bond or other collateral and (ii), as liquidated damages (and not as a penalty), you will be liable to and have the duty to immediately pay AX for the full amount of AX’s applicable buy-side fees (as determined by AX in its sole discretion) in the event of any breach by you of the confidentiality obligations in these Terms of Use (e.g., without limitation, you disclose another user’s identity (e.g., a seller) to a Person who is not a client of AX (whether through the Website or otherwise) that results in a Transaction being consummated with such Person. Notwithstanding the foregoing or anything contained in these Terms of Use to the contrary, you irrevocably and unconditionally agree that AX may disclose, in AX’s sole discretion, any or all of your Confidential Information to any other Person, whether a client or not, for the purposes of fulfilling your stated or specified objective(s).

As used in these Terms of Use, “Confidential Information” means: (a) all information displayed, disclosed, or otherwise made available to you by AX or another user on the Website or through the use of the Services (including, without limitation, (i) your identity, (ii) the identity of any other user of the Website or Services, (iii) the identity of any other Person who is not a user of the Website or Services and (iv) the fact that your or another user’s or any other Person’s business is or may be for sale or that you are or another user or any other Person is looking to buy or become a successor for a business, seeking a buyer or successor for a business, or otherwise using the Website or Services); and (b) all financial, production, marketing, and pricing information, business methods, business manuals, manufacturing procedures, correspondence, processes, data, contracts, customer lists, customer information, employee lists, business strategy, potential targets, or their location, business intelligence, trade secrets, proprietary software, and any other information, whether written, oral, in electronic format, or otherwise made known to you, directly or indirectly, (i) from or as a result of communications with another user or its affiliate or their respective equityholders, members, partners, directors, trustees, officers, managers, employees, independent contractors, consultants, advisors, agents, suppliers, customers, lenders, or other representatives, (ii) from or as a result of any inspection, examination, or other review of the books, records, assets, liabilities, processes, or production methods of another user’s or such user’s affiliates’ business, (iii) during or as a result of visits to another user’s or such user’s affiliates’ premises or place of business, or (iv) through disclosure or discovery in any other manner. Confidential Information does not, however, include information that you can demonstrate: (A) was in your possession prior to its being furnished to you by AX or another user of the Website and/or Services, provided you did not know or have reason to know after due inquiry that the source of the information was bound by a confidentiality or non-disclosure obligation, covenant, or agreement with, or other obligation of confidentiality to, another user or other third party; (B) is now, or hereafter becomes, through no act or failure to act on your part, generally known to the public; (C) is rightfully obtained by you from a third party, without breach of any obligation to another user or other third party or any legal or contractual obligation or restriction; or (D) is independently developed by you without use of or reference to the Confidential Information, provided such independent development is reasonably documented by you.

Obligation to Notify AX; Designated Closing Agent. In addition to and without limitation of any other obligations you may have to AX, whether by contract or otherwise, you hereby covenant and agree: (a) to notify AX in writing at least ten (10) days prior to the expected consummation date of any Transaction and/or the entering into of any Succession Plan between you and another user of the Website or Services or any other Person referred to you, introduced to you, or brought to your attention by AX or another user of the Website, or that you otherwise became aware of, or that became aware of you, as a direct or indirect result of the Services or other activities of AX or any other user of the Website or Services; and (b) with respect to the closing of any such Transaction and/or the entering into of any such Succession Plan, you will, unless otherwise directed by AX in writing, utilize the services of a closing agent designated by AX at its sole discretion and irrevocably agree that any fees and other obligations due AX will be paid to AX at the time of such closing or consummation and be reflected in the closing or equivalent statement provided by such closing agent. In the event you (i) do not notify AX of such events, (ii) fail to do so within the time provided for herein, (iii) do not or otherwise fail to utilize the services of AX’s designated closing agent, (iv) interfere in any way, directly or indirectly, with AX’s right to receive and collect a fee from you or another user of the Services, (v) evade, ignore, or impede AX or its representatives in any way in any investigation of such events (e.g., without limitation, your failure to cooperate with or respond to inquiries from AX during any such investigation), or (vi) provide false, misleading, or incorrect information to AX or its representatives, or otherwise misrepresent any facts, in any investigation of such events, you irrevocably covenant and agree that, as liquidated damages (and not as a penalty), you will be liable to and have the duty to immediately pay AX for the full amount of AX’s applicable buy-side fees (as determined by AX in its sole discretion) and any other losses, damages, costs, and expenses (including, without limitation, all collection costs, attorneys’ fees, court costs, arbitration costs, arbitrator fees, expert witness fees, and investigative costs) paid, accrued, or incurred by AX to collect any obligation owing by you hereunder, whether or not paid, accrued, or incurred in connection with litigation, arbitration, or any other proceeding. With respect to any closing event or activity, you and the other user/party will each be responsible for (A) the payment of your respective fees and expenses incurred in preparing for and consummating any Transaction and/or the entering into of any Succession Plan; and (B) one-half (1/2) of the costs of the closing agent and any related fees and expenses.

Linking to the Website and Social Media Features. You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, affiliation, approval, and/or endorsement on our part without our express written consent.

The Website may provide certain social media features that enable you to:

• Link from your own or certain third-party websites to certain Content on the Website.
• Send emails or other communications with certain Content, or links to certain Content, on the Website.
• Cause limited portions of Content on the Website to be displayed, or appear to be displayed, on your own or certain third-party websites.

You may use these features solely as they are provided by us, and solely with respect to the Content they are displayed with, and otherwise in accordance with any additional terms and conditions we provide with respect to such feature. Subject to the foregoing, you must not:

• Establish a link from any website that is not owned by you.
• Cause the Website or portions of it to be displayed, or appear to be displayed, for example, framing, deep linking, or in-line linking, on any other website.
• Link to any part of the Website other than the home page.
• Otherwise take any action with respect to the materials on the Website that is inconsistent with any other provision of these Terms of Use.

You agree to cooperate with us in causing any unauthorized framing or linking immediately to cease. We reserve the right to withdraw linking permission immediately without notice.

We may disable all or any social media features and any links at any time without notice to you or other parties in our sole and absolute discretion.

Privacy Policy. Our Privacy Policy, as it may change from time to time (the “Privacy Policy”), is incorporated herein by this reference. You agree that all information you provide on the Website is true, correct, accurate, current, and complete and is governed by the Privacy Policy. Our Privacy Policy, as updated by us from time to time, is available to you for review by “clicking” on the link(s) included herein.

Communications and Notices. AX may utilize email and other communication channels as a means of communicating with you. By providing AX with your contact information when you contact us, create an Account, or purchase the Services, you hereby acknowledge and grant AX permission to communicate with you via email and through other communication channels (such as by phone, mail, or fax) for any purpose, including, without limitation, notices, service announcements, and other marketing messages.

Recording of Conversations. You acknowledge and agree that any and all conversations with AX and its Representatives, whether in person or through traditional telephone systems, internet based telephone systems (e.g., without limitation, VoIP systems), cellular telephone systems, or any other electronic means of communication (e.g., without limitation, Skype and similar communication systems), may be recorded by AX for quality assurance, training, or any other purposes, and you hereby absolutely, irrevocably, and unconditionally consent to the recording of any and all such conversations.

DISCLAIMER OF WARRANTIES. YOU ASSUME RESPONSIBILITY FOR YOUR USE OF THE WEBSITE, THE SERVICES, AND THE CONTENT. AX MAKES NO REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER WITH RESPECT TO THE WEBSITE, THE SERVICES, OR THE CONTENT, AND EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH REGARD TO THE WEBSITE, THE SERVICES, OR ANY INFORMATION OR CONTENT CONTAINED THEREIN OR ASSOCIATED THEREWITH (INCLUDING THIRD-PARTY INFORMATION). AX DOES NOT WARRANT THAT THE FUNCTIONS PERFORMED BY THE WEBSITE OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR THAT DEFECTS IN THE WEBSITE OR THE SERVICES OR ERRORS IN THE CONTENT WILL BE CORRECTED. AX DOES NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE INFORMATION OR CONTENT PROVIDED BY THE WEBSITE OR SERVICES, OR THAT THE SERVICES WILL LEAD TO ANY PURCHASE, SALE, OR OTHER TRANSACTION, OR ANY SUCCESS OR RESULTS THAT MAY BE OBTAINED BY ENTERING INTO A TRANSACTION OR SUCCESSION PLAN OR USE OF THE SERVICES.

WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

LIMITATION OF LIABILITY. YOU UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES WILL AX BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, (A) ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, PROGRAMS, OR INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE WEBSITE, THE SERVICES, OR THE CONTENT, (B) ANY CLAIM ATTRIBUTABLE TO ACTS, ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE WEBSITE, THE SERVICES, AND/OR THE CONTENT ACCESSED OR DOWNLOADED THROUGH THE WEBSITE, (C) ANY ACTION OR INACTION REGARDING TRANSMISSIONS, COMMUNICATIONS, OR CONTENT MADE OR PROVIDED BY ANY USER OF THE WEBSITE OR THE SERVICES OR BY ANY THIRD PARTY, (D) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT, (E) STATEMENTS OR CONDUCT OF ANY USER OR THIRD PARTY ON THE WEBSITE OR OF ANY PERSON OTHERWISE USING THE SERVICES, OR (F) ANY OTHER MATTER RELATING TO THE WEBSITE, THE SERVICES, OR THE CONTENT, EVEN IF AX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH STATES, YOU UNDERSTAND AND AGREE THAT, TO THE EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF AX WILL NOT EXCEED $100, AND THAT AMOUNT WILL BE IN LIEU OF ALL OTHER REMEDIES WHICH YOU MAY HAVE AGAINST AX. FOR ALL OTHER CASES IN SUCH STATES WHERE THE FOREGOING EXCLUSION OR LIMITATION IS NOT PERMITTED, YOU UNDERSTAND AND AGREE THAT THE AGGREGATE LIABILITY OF AX IS LIMITED AND WARRANTIES ARE EXCLUDED TO THE GREATEST EXTENT PERMITTED BY LAW.

Force Majeure. AX will not be liable for any delays or non-performance directly or indirectly resulting from circumstances or causes beyond its reasonable control with respect to the Website or Services, including, without limitation, acts or omissions or the failure to cooperate by you (including, without limitation, entities or individuals under your control, or any of their respective officers, members, managers, directors, employees, other personnel, contractors, and agents), acts or omissions or the failure to cooperate by any user of the Services or third party, fire, epidemic, or other casualty, act of God, strike, or labor dispute, war, or other violence, or any law, order, or requirement of any governmental agency or authority.

Indemnification. You agree to defend, indemnify, and hold harmless AX, its affiliates, licensors, and service providers, and its and their respective equityholders, members, partners, managers, officers, directors, trustees, employees, contractors, agents, advisors, lenders, licensors, suppliers, successors, and assigns and other representatives from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including, without limitation, reasonable attorneys’ fees, costs of collection, court costs, arbitration costs, arbitrator fees, and other costs of collection) arising out of or relating to your breach or violation of these Terms of Use or your access or use of the Website, including, but not limited to, information provided by you, any use of the Services other than as expressly authorized in these Terms of Use, or your access or use of any information obtained from the Website (including, without limitation, Confidential Information).

Compensation for Legal Matters. If, at any time, any of AX’s members, managers, officers, employees, personnel, consultants, contractors, agents, or other representatives (each, a “Representative”, and collectively, the “Representatives”) are compelled to testify or otherwise appear in any matter relating to the Website or Services by subpoena, court order, other judicial, or arbitral process or otherwise (including, without limitation, any collection action related to the Services or these Terms of Use), then, in each case, you will, in addition to all other amounts due hereunder, immediately pay to AX (a) a non-refundable retainer in the amount of $10,000.00 as compensation for each such Representative’s availability and lost opportunities, and (b) an hourly fee of $500.00 (as from time to time adjusted) for all time expended on such matter (including, without limitation, any travel and down time) and all reasonable costs and expenses incurred in connection therewith (including, without limitation, transportation, lodging, and meal expenses) by each such Representative. In addition, you further acknowledge that we reserve any and all other legal, equitable, or other remedies that we may have at law, in equity, or otherwise, and that the foregoing does not constitute an election of remedies or waiver of any such other remedies available to us.

Late Charges and Interest; Collection Expenses. In the event that, for any reason, you fail to pay, or cause to be paid on your behalf, any amounts payable to AX pursuant to these Terms of Use, the Services, or otherwise within five (5) days immediately following the date on which such payment is due and payable (regardless of whether or not an invoice is received by you for such amount), you agree to pay, will be obligated to pay, and will in fact pay to AX, in addition to all other amounts due hereunder:

(a) a late charge equal to the lesser of: (i) the greater of (A) ten percent (10%) of such unpaid amount or (B) $2,500.00; or (ii) the highest late charge permitted by the laws of the State of Alabama or such other applicable law; and

(b) interest on the unpaid balance due hereunder from the date such amount was due through and including the date such balance is actually received by AX at the rate which is the lesser of: (i) eighteen percent (18%) per annum; or (ii) the highest rate permitted by the laws of the State of Alabama or such other applicable law, in any case, computed on a daily basis.

Notwithstanding anything contained in these Terms of Use to the contrary, you will also pay to or reimburse AX for all attorneys’ fees, costs, and expenses incurred by AX, and all other fees, costs, and expenses paid, accrued, or incurred by AX or its counsel (including, without limitation, all court and/or arbitration fees, costs, and expenses, and all discovery and investigative costs, expert witness fees, and other fees, costs, and expenses (including, without limitation, transportation, lodging, and meal expenses) paid, accrued, or incurred in connection with such activities, and the administrative costs of the court and/or arbitration proceeding(s), including payment of the arbitrator) in connection with the non-payment, late payment, and/or collection of the fees and other obligations due, payable, or past due to AX, incurred or accrued by AX, or otherwise owed by you or on your behalf in connection with these Terms of Use, in each case, regardless of whether such fees and other obligations are disputed or undisputed and without set off of any kind.

General Provisions

1. Correction of Errors and Inaccuracies. The information on the Website may contain typographical errors or other errors or inaccuracies and may not be complete or current. We therefore reserve the right to correct any errors, inaccuracies, or omissions and to change or update information at any time and from time to time without prior notice to you. We do not guarantee, however, that all errors, inaccuracies, or omissions will be corrected, and you acknowledge and confirm your understanding that we are under no obligation to change or update such information.
2. No Endorsements of Links. Hypertext links to third-party websites or information do not constitute or imply an endorsement, sponsorship, or recommendation by AX of the third-party, the third-party website, or the information contained therein. You acknowledge and agree that AX is not responsible for the availability of any such websites, and that AX does not endorse or warrant and is not responsible or liable for any such website or the information, data, and/or content therein. Any links to other sites are provided for convenience only. You need to make your own decisions regarding your interactions or communications with any other website.
3. Governing Law; Exclusive Jurisdiction. These Terms of Use are governed by, and will be interpreted in accordance with, the laws of the State of Alabama, without regard to any conflict of laws provisions. Although you acknowledge and agree that we will have the ability to enforce our rights in any court of competent jurisdiction, you hereby consent to the exclusive jurisdiction and venue of state and federal courts situated in Calhoun County, Alabama, U.S.A. (or such other county in which AX’s principal place of business may be located as applicable), regarding any and all disputes, claims, or controversies relating to these Terms of Use, the Privacy Policy, your use of the Website, any other website, or the Services, or the Content.
4. Limitation on Time to File Claims. ANY CAUSE OF ACTION, COUNTER-CLAIM, CROSS-CLAIM, AND/OR OTHER CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE, THE WEBSITE, OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION, COUNTER-CLAIM, CROSS-CLAIM, AND/OR OTHER CLAIM ACCRUES. OTHERWISE, YOU AGREE THAT SUCH CAUSE OF ACTION, COUNTER-CLAIM, CROSS-CLAIM, AND/OR OTHER CLAIM IS PERMANENTLY BARRED AND WAIVED BY YOU, AND YOU HEREBY COVENANT AND AGREE TO RELEASE AND DISCHARGE AX AND ITS REPRESENTATIVES FROM ANY LIABILITY TO YOU WITH RESPECT TO ANY SUCH CAUSE OF ACTION, COUNTER-CLAIM, CROSS-CLAIM, AND/OR OTHER CLAIM FOLLOWING EXPIRATION OF SUCH ONE (1) YEAR PERIOD.
5. WAIVER OF JURY TRIAL; Arbitration. YOU AGREE TO IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY ACTION, CAUSE OF ACTION, SUIT, PROCEEDING, CLAIM, COUNTERCLAIM, OR DISPUTE ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THE WEBSITE, THE SERVICES, AND/OR THESE TERMS OF USE (each, a “Dispute”). At AX’s sole discretion, AX may require you to submit any Dispute, including, without limitation, any Dispute arising from or concerning the interpretation, violation, invalidity, non-performance, or termination of these Terms of Use, to final and binding arbitration under the Commercial Arbitration Rules (the “Rules”) of the American Arbitration Association (“AAA”) (without being submitted to the AAA) as in effect at the time of the demand for arbitration of such Dispute applying the governing law provided for in Section 3 above;  provided, however, that (a) only a single arbitrator will be appointed and said single arbitrator will constitute the entire arbitration panel, (b) if the parties are unable to agree on a single arbitrator within fourteen (14) calendar days after the initiation of an arbitration proceeding, then each party will select its choice as an arbitrator, and the two (2) selected arbitrators will choose the arbitrator to hear the Dispute, (c) the arbitrator will be required to render a reasoned award stating with particularity the grounds for his or her decision, (d) any such arbitration will take place in the same city and state where the Consultant is located at the time of the arbitration, and (e) in the event of any conflict between the Rules and the provisions of this Section, the provisions of this Section will prevail.  The decision in writing of the arbitrator will be final and binding upon the parties and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. In no event will (i) either party be liable to the other for any consequential, special, indirect, incidental, punitive, or exemplary loss, damage, or expense of the other for any reason whatsoever, whether any claim for such recovery is based upon theories of contract, negligence, or tort (including strict liability) or (ii) the arbitrator or court, as the case may be, have the authority to award such damages. Further, the arbitrator and court, as the case may be, will not have any power to alter, amend, modify, or change any of the terms of these Terms of Use. All such actions and proceedings regarding equitable or injunctive relief or to enforce or contest an arbitral award will be subject to the exclusive jurisdiction of the courts set forth in Section 3 above. Each party further covenants not to sue the other party (or such other party’s representatives) or seek relief with respect to these Terms of Use in any court or jurisdiction other than as provided for in Section 3 above. Except as otherwise provided in these Terms of Use (e.g., without limitation, the Indemnification, Compensation for Legal Matters, and Late Charges and Interest; Collection Matters sections above in these Terms of Use), if an arbitration or other legal proceeding is instituted to enforce a party’s rights hereunder, each party will be responsible for: (A) the payment of its own fees and expenses incurred by such party in preparing for and trying the proceeding before the arbitrator or court, as the case may be, including, without limitation, investigative costs, expert witness fees, and attorneys’ fees; and (B) one-half of the administrative costs of any such arbitration proceeding, including payment of the arbitrator.
6. Entire Agreement. These Terms of Use, together with any terms, conditions, or documents incorporated herein by reference, constitute the entire agreement between you and AX with respect to the subject matter hereof and, except for any engagement and fee agreement or other agreement entered into between you and AX (e.g., any consulting and/or other agreements for services or terms and conditions available for a specific service via the Website or otherwise), supersede all previous written or oral agreements between you and AX with respect to such subject matter. No waiver by AX of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default.
7. Binding Effect; Assignment. These Terms of Use are binding upon and inures to the benefit of you and AX and the respective heirs, executors, legal representatives, successors, and assigns of you and AX. Notwithstanding the foregoing, any agreement to use the Website or Services is between you and AX and may not be assigned, transferred, sublicensed, distributed, shared, given, or otherwise granted to any other Person without the express written permission of AX.
8. Headings; Severability. Headings used in these Terms of Use are for convenience only and are not to be construed as part of these Terms of Use. If any part of these Terms of Use is determined to be invalid or unenforceable, it will not affect any other provision of these Terms of Use, all of which will remain in full force and effect.
9. General Contact Information. If you have any questions about these Terms of Use, the practices of the Website, or your dealings with the Website, you may contact us by:

Sending us an email request to:
info@enterprise-advisors.com

Sending a letter by US Mail to:

AdviserXchange
PO Box 7471
Oxford, AL 36203