GENERAL TERMS OF SERVICE
These General Terms of Service (“Terms of Service”) establish the terms and conditions governing the relationship between NOW Exit, LLC, and any affiliate or subsidiary thereof (the “Advisor”) and each client (a “Client”) that engages Advisor to provide advisory or related services (the “Services”) pursuant to a written services, engagement, or advisory agreement (each, a “Services Agreement”). These Terms of Service are incorporated by reference into and form an integral part of each Services Agreement between Advisor and Client. Any capitalized terms used but not defined in these Terms of Service shall have the meanings assigned to them in the applicable Services Agreement. By executing a Services Agreement or otherwise accepting or receiving Services from Advisor, Client acknowledges and agrees to be bound by these Terms of Service.
1. Relationship of the Parties
Advisor is acting as an independent contractor in the performance of the services described in this Agreement. Nothing contained in this Agreement shall be deemed or construed to create any partnership, joint venture, agency, fiduciary, or employment relationship between the parties. Advisor shall have no authority to bind Client or to incur any obligation on Client’s behalf without Client’s prior written consent. Advisor shall be solely responsible for the manner and means of performing its services under this Agreement and for all taxes, insurance, and other obligations associated with its personnel.
2. Client Responsibility
Client acknowledges that Advisor’s ability to provide effective Advisory Services under this Agreement depends upon the timely cooperation of Client and the accuracy and completeness of information provided by Client. Accordingly, Client agrees to cooperate with Advisor in good faith and to provide such information, access, and assistance as Advisor may reasonably request in connection with the services described in this Agreement. Without limiting the foregoing, Client shall:
a. provide Advisor with accurate, complete, and current financial statements, operational information, and other business records reasonably necessary for Advisor to perform the Advisory Services;
b. promptly respond to reasonable requests for information, clarification, or documentation made by Advisor in connection with strategic analysis, transaction preparation, or diligence readiness;
c. cooperate with Advisor in organizing and preparing materials necessary for potential transaction evaluation, including financial summaries, operational data, and other information relevant to the Business; and
d. designate appropriate representatives who are authorized to communicate with Advisor and make timely decisions regarding matters related to the Advisory Services Service.
Advisor shall be entitled to rely upon the accuracy and completeness of all information provided by Client without independent verification. Client acknowledges that Advisor will not conduct an audit, review, or other independent verification of the information provided by Client unless otherwise expressly agreed in writing.
3. Reliance on Seller Representations
Advisor is entitled to rely entirely on the accuracy and completeness of all information, statements, and documents provided by Seller regarding the Business. Advisor has no obligation to verify, audit, or investigate the accuracy of such information and shall not be responsible for any errors, omissions, or misrepresentations made by Seller. Seller acknowledges that prospective buyers will also rely on the information provided by Seller, and Seller agrees to indemnify and hold Advisor harmless from any claims arising from inaccuracies or omissions in such information.
4. Authority to Release Information
Seller authorizes Advisor to require prospective buyers to execute a confidentiality agreement and permits Advisor to disclose and communicate to such buyers any information about the Business that Advisor reasonably deems necessary to facilitate its sale.
5. Representation
Seller acknowledges that Advisor and its agents represent the Seller; however, Advisor may also represent potential buyers in the transaction with the knowledge and written consent of all parties, as required by law. Seller confirms receipt of any required state disclosure forms. If both Seller and Buyer are represented by licensees affiliated with the same company, separate representatives may be assigned to each party. A licensee representing only the Seller has no duty to advocate for the Buyer, and a licensee representing only the Buyer has no duty to advocate for the Seller. Unless otherwise amended in writing, Seller authorizes Advisor to act as agent for both Seller and Buyer in connection with the sale or disposition of the Business.
6. No Investigation of Buyer
Seller acknowledges that Advisor has no duty to investigate or verify any information regarding a buyer’s creditworthiness, financial condition, business experience, or ability to complete the transaction or repay any seller-financed obligation. The decision to extend credit or financing to a buyer is solely the Seller’s responsibility. Seller agrees to seek relief only from the Buyer and to defend, indemnify, and hold Advisor harmless from any loss, claim, or damage arising from the Buyer’s failure to perform, misrepresentation, or default. Seller further agrees not to disclose any confidential information about the Buyer that could be detrimental to the Buyer.
7. Exclusivity
In consideration of Advisor’s agreement to accept the Business for sale and to devote its best efforts, skill, and resources toward securing a buyer and consummating a sale transaction, Seller hereby grants to Advisor the sole and exclusive right to market and sell the Business for a period of twelve (12) months commencing on the Effective Date of this Agreement (the “Exclusive Period“). During the Exclusive Period, Seller shall not engage, authorize, or permit any other broker, agent, or third party to market, solicit offers for, or otherwise attempt to sell the Business, nor shall Seller directly negotiate with any prospective purchaser except through or with the written consent of Advisor. If, during the Exclusive Period, Seller sells, transfers, or otherwise disposes of any ownership interest in the Business, whether directly or indirectly, to any person or entity—regardless of whether such person or entity was introduced to Seller by Advisor—Advisor shall be entitled to the full commission and fees specified in this Agreement as though Advisor had procured the buyer.
8. Confidentiality
a. Definition of Confidential Information. For purposes of this Agreement, “Confidential Information” means all non-public, proprietary, or confidential information disclosed or made available by Client to Advisor, whether orally, in writing, electronically, or otherwise, including without limitation business plans, financial information, customer and supplier information, operational data, marketing strategies, intellectual property, trade secrets, transaction discussions, and any other information relating to the business, operations, or affairs of Client. Confidential Information shall also include the existence and terms of this Agreement and any information prepared by Advisor that contains or reflects such information.
b. Not Confidential Information. Confidential Information does not include information that:
i. is or becomes publicly available through no breach of this Agreement by Advisor;
ii. was lawfully known to Advisor prior to disclosure by Client without restriction on use or disclosure;
iii. is received by Advisor from a third-party who is not under an obligation of confidentiality to Client; or
iv. is independently developed by Advisor without use of or reference to Client’s Confidential Information.
c. Use and Protection of Confidential Information. Advisor agrees to maintain the confidentiality of all Confidential Information and to use such Confidential Information solely for the purpose of providing the Advisory Services described in this Agreement. Advisor shall exercise reasonable care to protect the confidentiality of such information and shall not disclose Confidential Information to any third party except to Advisor’s employees, contractors, Advisors, or representatives who have a legitimate need to know such information for purposes of performing the services under this Agreement and who are bound by confidentiality obligations no less protective than those set forth herein.
d. Permitted Disclosures. Advisor may disclose Confidential Information to the extent required by applicable law, regulation, court order, or governmental authority; provided, however, that Advisor shall, to the extent legally permitted, provide Client with prompt notice of such requirement so that Client may seek an appropriate protective order or other remedy.
e. Return or Destruction of Information. Upon termination of this Agreement or upon Client’s reasonable written request, Advisor shall return or destroy Confidential Information in its possession or control, except that Advisor may retain copies as required for legal, regulatory, archival, or compliance purposes.
f. Survival. The obligations set forth in this Section shall survive the termination or expiration of this Agreement for a period of five (5) years, or for such longer period as the applicable Confidential Information qualifies as a trade secret under applicable law.
9. Non-Solicitation
During the term of this Agreement, and for a period of one (1) year following termination thereof, Company shall not solicit for employment or hire, either directly or indirectly (as an employee, contractor or otherwise), any employee, former employee, agent, consultant, contractor, or other representative of Advisor or its affiliates (“Advisor Personnel”), unless Company pays to Advisor a placement fee equal to one hundred percent (100%) of the greater of: (i) the annual compensation Advisor pays to such solicited Advisor Personnel, or (ii) the annual compensation Company has offered to such solicited Advisor Personnel. Company agrees that any attempt or actual hiring of such Advisor Personnel without prior written approval from Advisor will be a material breach of this Agreement, and that Advisor will be entitled to an immediate injunction and all other remedies and legal damages afforded under the law.
10. Regulatory Limitation; Broker-Dealer Disclaimer
The services provided by Advisor under this Agreement are advisory and preparatory in nature only. Advisor is not acting as a registered broker-dealer, securities broker, placement agent, or investment banker under this Agreement. Nothing in this Agreement authorizes Advisor to engage in activities that would require registration as a broker-dealer under applicable federal or state securities laws. Advisor will not, under this Agreement, engage in securities brokerage activities unless and until the Parties enter into a subsequent engagement agreement that is structured to comply with applicable securities laws and broker-dealer regulatory requirements, which may include the involvement of a registered broker-dealer if required. Without limiting the foregoing, Advisor will not under this Agreement:
a. receive or be entitled to any transaction-based compensation, including any success fee or fee contingent upon the completion of a transaction;
b. solicit investors or purchasers in connection with the offer or sale of securities; or
c. effect, participate in, or otherwise facilitate securities transactions requiring broker-dealer registration.
If the Parties determine that Advisor will assist Client with a transaction process that may involve securities or otherwise require broker-dealer participation, the Parties acknowledge that additional engagement documentation may be required and such activities will only be conducted pursuant to a separate agreement that complies with applicable regulatory requirements.
11. Future Engagement Letters
The parties acknowledge that this Agreement establishes an initial Advisory Services relationship and that additional engagement documentation may be required depending on the structure of any potential transaction and applicable legal, regulatory, or licensing requirements. Such subsequent engagement agreements may address matters including, without limitation, transaction execution services, transaction-based compensation or success fees, and broker-dealer participation or compliance requirements. Client understands and agrees that the provision of certain transaction-related services may require the execution of one or more additional engagement letters with Advisor or with an affiliated or third-party entity, including a registered broker-dealer if applicable.
12. Securities Transactions; Broker-Dealer Participation
If any proposed transaction contemplated under this Agreement involves the offer, sale, or placement of securities requiring the participation of a registered broker-dealer under applicable federal or state securities laws, Client acknowledges that such services must be performed through a registered broker-dealer. Advisor shall determine, in its reasonable discretion, whether a proposed transaction requires broker-dealer participation. If Advisor determines that broker-dealer involvement is required, Client agrees that the parties will enter into a separate engagement agreement governing such services, which may include an agreement with Advisor’s broker-dealer partner, Finalis Securities, LLC, Member FINRA/SIPC (“Finalis”), or another registered broker-dealer as required. In such event, any securities-related services and compensation shall be conducted and paid through the applicable broker-dealer in accordance with applicable securities laws and regulatory requirements. Finalis Securities, LLC requires that Client enter into a separate engagement agreement directly with Finalis before any securities-related services may be provided through Finalis. Advisor is not a registered broker-dealer.
13. No Guarantee of Transaction
Client acknowledges that Advisor’s services under this Agreement are Advisory Services and preparatory in nature. Advisor makes no representation, warranty, or guarantee that a transaction will occur, that any specific buyer or investor will be identified, or that any particular valuation, terms, or transaction outcome will be achieved. Any decision to pursue or complete a transaction remains solely within the control of Client and any third parties involved. Advisor shall not be responsible for the failure of any transaction to occur or for the terms, timing, or outcome of any potential transaction.
14. Expenses
Client agrees to reimburse Advisor for all reasonable and documented out-of-pocket expenses incurred by Advisor in connection with the performance of the Advisory Services described in this Agreement. Such expenses may include, without limitation, reasonable travel expenses, data room or document management software costs, preparation or production of marketing materials, and fees or costs associated with third-party service providers engaged to support transaction preparation or diligence activities. Advisor will endeavor to notify Client in advance of any material expenses expected to be incurred. All reimbursable expenses shall be itemized and invoiced to Client and shall be payable in accordance with the payment terms set forth in this Agreement.
15. Aggregate Consideration
For purposes of any Services Agreements providing for a success fee or transaction-based compensation, “Aggregate Consideration” means the total value paid or payable to Client, Seller, or their respective owners in connection with a Transaction, whether paid at closing or thereafter and regardless of the form in which such value is conveyed. Aggregate Consideration includes, without limitation, cash payments, promissory notes, seller financing, earnouts, rollover equity, retained equity interests, assumed or satisfied liabilities, consulting or employment agreements, non-compete or non-solicitation payments, contingent or deferred payments, stock, membership interests, partnership interests, options, warrants, or other securities, as well as any other form of property, benefit, or economic value received directly or indirectly by Client, Seller, or their owners as part of or in connection with the Transaction. Aggregate Consideration shall also include any value received through related or side agreements entered into in connection with the Transaction, including management agreements, transition services agreements, or other arrangements that provide economic benefit to Client, Seller, or their owners. The determination of Aggregate Consideration shall be made in good faith by Advisor based on the total economic value of the Transaction, regardless of the structure or timing of payments.
16. Fee Entitlement
In addition to being entitled to its commission upon the sale or disposition of the Business or property, Advisor shall also be entitled to its full fee, based on the asking price, and released from any further obligations under this Agreement if Seller commits any material breach, including but not limited to: materially misrepresenting financial statements, tax filings, licenses, permits, income, expenses, or other business information that causes a buyer to withdraw; entering into any agreement, accepting deposits, or completing any sale or transfer without written notice to Advisor or without identifying Advisor as the procuring cause and third-party beneficiary; failing to comply with any term of this Agreement; refusing or failing to cooperate with a buyer’s due diligence or to provide requested documents within a reasonable time; refusing or failing to complete a sale or transfer after signing a purchase agreement or mutually rescinding such agreement; or rejecting an offer from a ready, willing, and able buyer at the asking price or other terms previously agreed to in writing and communicated to Advisor as acceptable. In any such event, the full fee shall be immediately due and payable upon demand.
17. Default; Collection of Amounts Owed
Client shall be in default under this Agreement if Client fails to timely pay any invoice, success fee, or other amount due under this Agreement, or otherwise materially breaches this Agreement and fails to cure such breach within ten (10) days after written notice from Advisor. Upon default, Advisor may suspend or terminate Services and pursue all available legal or equitable remedies. Client agrees to reimburse Advisor for all reasonable costs incurred in enforcing this Agreement or collecting any unpaid amounts, including collection agency fees, court costs, filing fees, and reasonable attorneys’ fees.
18. Marketing and Social Media
Advisor shall market the Business using its standard methods and in accordance with ethical and legal industry standards, with sole discretion over all marketing strategies and materials. Advisor is not required to list the Business publicly, and Seller shall not advertise or promote the Business for sale without Advisor’s prior written consent. Advisor may, at its discretion, introduce prospective buyers, advertise financing terms offered by Seller, and disclose Seller’s reason for selling unless expressly prohibited in writing. Advisor is not required to cooperate with other brokers but may do so and share its fee on terms it deems appropriate. Seller authorizes Advisor to photograph, record, and create marketing content for the Business and grants a non-exclusive, irrevocable, worldwide, royalty-free license to use, reproduce, and distribute such content, which shall survive termination of this Agreement. Seller represents that all materials provided do not infringe upon third-party rights and agrees to hold Advisor harmless from related claims. Both parties agree not to post or publish any negative or disparaging comments about the other on social media or public platforms, and any such act shall constitute a material breach of this Agreement.
19. Limitation of Liability
To the fullest extent permitted by applicable law, Advisor and its members, managers, officers, employees, agents, and affiliates shall not be liable to Client for any indirect, incidental, consequential, special, punitive, or exemplary damages, including without limitation any loss of profits, loss of business opportunities, loss of goodwill, or similar damages, arising out of or relating to this Agreement or the services provided hereunder, regardless of the form of action and even if Advisor has been advised of the possibility of such damages. Advisor’s total aggregate liability to Client for any and all claims, damages, losses, or expenses arising out of or relating to this Agreement or the services provided hereunder shall not exceed the total amount of fees actually paid by Client to Advisor under this Agreement. Client acknowledges that Advisor’s services are Advisory Services in nature and that Advisor relies on information provided by Client and third parties. Advisor shall not be responsible for the accuracy or completeness of information supplied by Client or other third parties and shall not be liable for any actions taken by Client or third parties in connection with any potential transaction. The limitations set forth in this Section shall apply regardless of the form of action, whether in contract, tort, negligence, strict liability, or otherwise, and shall survive the termination or expiration of this Agreement.
20. Indemnification
Seller agrees to indemnify, defend, and hold harmless Broker and its owners, members, managers, officers, employees, agents, and affiliates from and against any and all claims, demands, losses, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees, arising out of or relating to (i) the Business or its operations, (ii) this Agreement or the performance of services hereunder, (iii) any proposed or completed transaction involving the Business, or (iv) any representations, warranties, statements, or information provided by or on behalf of Seller to Broker or to any prospective buyer or third party. This indemnification shall survive the termination or expiration of this Agreement.
21. Severability
If any provision of this Agreement is found to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect, and the invalid provision shall be interpreted or reformed to the extent necessary to make it enforceable while preserving its intent.
22. Attorney’s Fees
In any dispute arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, court costs, and expenses incurred in enforcing or defending its rights hereunder.
23. Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the State of Utah, without regard to its conflict of law principles. The parties agree that any legal action or proceeding arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in Salt Lake County, Utah, and each party consents to the jurisdiction and venue of those courts.
24. Assignment
Seller may not assign or transfer this Agreement or any rights or obligations hereunder without the prior written consent of Advisor. Advisor may assign this Agreement to an affiliate or successor in interest upon written notice to Seller.
25. Waiver
The failure of either party to enforce any term or condition of this Agreement shall not constitute a waiver of that provision or of any other provision, nor shall any single or partial exercise of any right or remedy preclude any other or further exercise thereof.
26. Force Majeure
If the performance of the Services or any other obligation under the Services Agreement or these Terms of Service is prevented, restricted, or interfered with by causes beyond a party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrences, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, and/or work stoppages. The excused party shall use reasonable efforts under the circumstances to avoid or remove such cause of nonperformance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased.
27. Counterparts; Electronic Signatures
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures transmitted electronically or by PDF shall be deemed binding as originals.