With respect to any service, including assisting in the sale of a business (“Business”) and/or its assets (“Assets”), Raincatcher (“Consultant”) acts only as an independent third party assisting Seller with certain aspects of the transaction. In this regard, the relevant buyer (“Buyer”) and/or seller (“Seller”) acknowledge that:
1.0 Consultant is not an agent, broker, or legal representative of any party.
2.0 Consultant makes no guarantees, representations or warranties regarding the Seller’s Business, its Assets and/or the advisability of entering into the Transaction. Consultant has not verified the accuracy or completeness of any relevant information, received from any source.
3.0 Consultant is not licensed as a securities broker or dealer and has no involvement in advertising, negotiating or otherwise executing a sale of the stock of the Business. If Consultant introduces a prospect for the purchase of the Business Assets, and the parties subsequently decide on a stock sale, this decision shall not affect the Consultant’s right to its fees which shall be paid as though an asset sale had been undertaken.
4.0 Seller is solely responsible for locating the Buyer. Neither Buyer nor Seller is relying upon any statements or representations made by Consultant in deciding whether to purchase or sell the Business or any of its Assets, nor upon any statements or representations regarding the valuation placed on the Business or any of its Assets. Seller is relying solely on his own investigation of the Buyer’s creditworthiness and ability to complete this transaction, repay any Seller financing provided, and to successfully operate the Business. Buyer is relying solely on Buyer’s own inspection of the Business, its Assets, financial statements , business records, contracts, operational history, future profitability and the representations made by Seller and on such other material facts as Buyer, in its sole discretion, deems necessary and prudent.
5.0 The Company shall be responsible for all of its costs associated with closing a Transaction, including, but not limited to, legal, accounting, other professional services, appraisals, travel and applicable fees and taxes.
6.0 Consultant is not an attorney or CPA and cannot advise the parties as to any legal remedy, business, or tax consequences of any provision or instrument set forth or prepared in connection with this Transaction. Even if Consultant’s discussions touch upon legal or accounting issues, such should not be interpreted as professional advice or opinions. If legal or accounting advice is desired, the parties should consult an attorney or CPA.
7.0 The Seller and their assigns and successors jointly and severally, indemnify the Consultant and hold the Consultant harmless from any responsibility, losses or liability arising from the contemplated Transaction, the Business or the Assets, or any misrepresentation by Seller or any third party.
8.0 If any party to this Agreement brings an action directly or indirectly based on this Agreement, the prevailing party will be entitled to recover expenses of such action, including but not limited to, reasonable attorneys’ fees and court costs from the other party to this Agreement.
10.0 IN NO EVENT SHALL REPRESENTATIVE BE LIABLE TO COMPANY OR ANY THIRD PARTY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR INTENTIONAL ACTS), OR OTHERWISE, FOR ANY AMOUNT IN EXCESS OF THE CONSULTANT FEES PAID.
11.0 TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY SHALL INDEMNIFY AND HOLD HARMLESS REPRESENTATIVE AND REPRESENTATIVE’S OWNERS, OFFICERS, CONSULTANTS, AGENTS, ATTORNEYS, CONTRACTORS, AND EMPLOYEES FROM AND AGAINST ALL CLAIMS, DAMAGES, LIABILITIES, LOSSES, AND EXPENSES, INCLUDING, BUT NOT LIMITED TO, REPRESENTATIVE’S ATTORNEY’S FEES, ARISING OUT OF, RESULTING FROM, OR RELATED TO REPRESENTATIVE’S PERFORMANCE, COMPANY’S USE OF REPRESENTATIVE’S SERVICES, COMPANY’S BREACH OF THIS AGREEMENT, OR COMPANY’S NEGLIGENCE OR WILLFUL MISCONDUCT.
12.0 EXCEPT AS OTHERWISE STATED IN THIS SECTION, REPRESENTATIVE’S SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. REPRESENTATIVE NEITHER ASSURES NOR ASSUMES ANY LIABILITY TO ANY PERSON OR ENTITY FOR THE PROPER PERFORMANCE OF SERVICES OR THAT THE INFORMATION PROVIDED BY REPRESENTATIVE IS ACCURATE OR COMPLETE. REPRESENTATIVE DOES NOT REPRESENT OR WARRANT THAT THE SERVICES ARE COMPLETE OR FREE FROM ERROR, AND DOES NOT ASSUME, AND EXPRESSLY DISCLAIMS, ANY LIABILITY TO ANY PERSON OR ENTITY FOR LOSS OR DAMAGE CAUSED BY ERRORS OR OMISSIONS IN THE SERVICES, WHETHER SUCH ERRORS OR OMISSIONS RESULT FROM NEGLIGENCE, ACCIDENT, OR OTHER CAUSE.
13.0 This Agreement shall be construed in accordance with the laws of the State of Colorado.
14.0 All disputes, controversies, claims or differences which may arise between the parties hereto out of or in relation to or in connection with this Agreement or the breach thereof shall be finally settled by arbitration conducted in accordance with the Commercial Arbitration Rules (the “Rules”) of the American Arbitration Association, then in effect. Whenever any dispute, controversy, claim or difference which may be submitted to arbitration arises between the parties hereto, either party hereby may give to the other party hereto notice, in accordance with the provisions hereof, of its intention to submit such dispute, controversy, claim or difference to arbitration. Such arbitration shall take place in metropolitan Denver, Colorado, United States of America, before a single arbitrator agreed upon by the parties to the arbitration. In the event the parties to the arbitration cannot agree upon an arbitrator within twenty (20) days after the delivery of notice as provided herein, of either party’s notice to arbitrate, such arbitration shall take place in Denver, Colorado, United States of America, before a single arbitrator appointed by the American Arbitration Association in accordance with the Rules. The parties hereto agree that the party instituting the arbitration will initially pay the deposit necessary to commence the arbitration, the expenses or costs of the arbitration, and the parties’ attorneys’ fees may be assessed against the party which does not prevail in the arbitration, as so fixed by the arbitrator. The determination of such arbitrator will be final and binding upon the parties to the arbitration, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction, or application may be made to such court for a judicial acceptance of the award and an order of enforcement, as the case may be. The arbitrator shall set forth the grounds for his decision in the award. The arbitrator shall apply the law of the State of Colorado, United States of America, as to both substantive and procedural questions.
The parties hereto stipulate that submission of disputes to arbitration and arbitration pursuant thereto shall be a condition precedent to any suit, action or proceeding instituted in any court or before any administrative tribunal with respect to this Agreement or disputes arising out of or regarding this Agreement.
14.0 This Agreement may not be assigned or delegated by either party without the express written consent of the other party.
The waiver by any party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by any party.
This Agreement may be executed in several counterparts, and all of such counterparts taken together shall be deemed to be one Agreement. Electronic notice and signatures hereunder shall be deemed to be originals.
In the event one or more of the provisions contained in this Agreement shall be for any reason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, but such Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been set forth herein and the Agreement shall be carried out as nearly as possible according to its original terms and intent.