Standard Disclaimer

This Standard Disclaimer (“Disclaimer”) governs the relationship between Morgan & Westfield (“Company”) and any person or entity (“Client”) that engages the Company to provide services, whether pursuant to a written agreement or otherwise. By entering into a Financial Services Agreement (a “Services Agreement”) or otherwise receiving services from the Company, the Client acknowledges and agrees that this Disclaimer is incorporated by reference into any such engagement and forms a binding part of the contractual relationship between the Company and the Client. This Disclaimer applies to all Clients without limitation, and governs the scope, nature, and limitations of the Company’s role, including important disclosures regarding the Company’s status as an independent consultant, limitations on liability, indemnification obligations, and the requirement to seek independent legal, tax, and accounting advice. Clients are encouraged to review this Disclaimer carefully, as it affects their legal rights and obligations.

1. Relationship. Company is not a legal representative of any party. Company is strictly a third-party advisor acting as an independent consultant and does not assume fiduciary responsibility. Client acknowledges receipt of the Company’s Agency Disclosure Form as an appendix to this document.
2. Independent Contractor. Company is an independent contractor with respect to Client and is not an employee of Client. Client will make no deductions from fees paid to Company for any federal or state taxes, FICA, or other deductions that would be relevant to employees.
3. No Guarantees. Company makes no guarantees, representations, or warranties regarding the Client’s business, its assets, and/or the advisability of entering into any transaction. Company has not verified the accuracy or completeness of any relevant information received from any source.
4. No Legal Advice. Company 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 a transaction. Even if Company’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.
5. Indemnification. The Client agrees to indemnify, defend, and hold harmless Company, its affiliates, officers, directors, employees, agents, and representatives (collectively, the “Indemnified Parties”), from and against any and all claims, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees and costs) incurred by or asserted against the Indemnified Parties arising out of or in connection with (i) any breach by the Client of its representations, warranties, or obligations under this Disclaimer or the Services Agreement, (ii) any act or omission by the Client related to the Transaction, or (iii) any third-party claims related to the Transaction, except to the extent such claims result from the gross negligence or willful misconduct of the Indemnified Parties. The Client’s obligation to indemnify and hold harmless shall survive the termination or expiration of the Agreement.
6. Limitation on Liability. In the event of litigation, Company’s maximum liability shall be the amount of fee actually paid by Client to Company.
7. Third-Party Cooperation and Referral Arrangements. Company may, at its discretion, enter into cooperation, referral, or fee-sharing arrangements with brokers, agents, lenders, or other service providers.
8. Consulting Fees. For any hourly consulting work and/or advice (“Consulting Services”) outside of the scope of a Service Agreement, or outside of our standard sale process, Client agrees to pay Company based on its current hourly rates, which are available at www.morganandwestfield.com/terms-and-conditions/. If Client requests Consulting Services from Company, Client will pay a retainer to Company for Consulting Services in the amount of $5,000; payable in advance. The retainer is refundable within 60 days if unused. Company shall bill first to the retainer. Upon depletion of the retainer, fees for Consulting Services are automatically billed to Client’s payment method on file on a weekly basis, or when the outstanding balance exceeds the initial retainer amount, whichever occurs first.
9. Payment Terms.
   1. Late Payments. If Company does not receive their fees when due under this Agreement, Client shall be deemed to be evading payment and the Company may impose an additional 50% penalty.
   2. Contingent Fees. To the extent of the Company’s Fee, Client grants Company a security interest in the Business, irrevocably assigns to Company any sales proceeds, and makes Company a party to any escrow.
10. Disputes. No action arising out of or related to this Disclaimer or the Service Agreement may be brought by either party more than six (6) months after the cause of action has arisen or, in the case of nonpayment of fees, more than five (5) years from the date of the last payment. Company may require mediation of any dispute or claim arising out of this Disclaimer or the Service Agreement or any resulting relationship or transaction between such parties. This Disclaimer or the Service Agreement shall bind and inure to the benefit of the parties and their respective successors, permitted assigns, legal representatives, and heirs. In the event of any legal action (including arbitration) to enforce or interpret this Disclaimer or the Service Agreement, the non-prevailing party shall pay the reasonable attorneys’ fees and other costs and expenses (including expert witness fees) of the prevailing party in such amount as may be determined.
11. Confidentiality. Client recognizes that Company has, and will have, access to a limited amount of proprietary information (“Information”), which is valuable, special, and unique. Company recognizes that it is imperative that such Information be protected from improper disclosure. In consideration for the disclosure of the Information, Company will not, at any time or in any manner, either directly or indirectly, use any Information for Company’s own benefit or gain, or divulge, disclose, or communicate in any manner any Information to any third party without the prior written consent of Client.  The confidentiality obligations set forth in this Disclaimer shall apply to all disclosures made by either Party unless and until a separate non-disclosure agreement (“NDA”) is executed between the Company and the Client. In the event of any conflict or inconsistency between this Disclaimer and a separately executed NDA, the terms of the NDA shall control and supersede this Disclaimer with respect to the subject matter of confidentiality.
12. Notices. Notice to Company under this Standard Disclaimer or any Financial Services Agreement or any of its addendums or amendments, shall be effective only if sent via email to [email protected] unless Company explicitly requires another notice method.

Sale of Business. The succeeding clauses apply if Company advises Client as either a seller (“Seller”) or buyer (“Buyer”) in the sale of a business (the “Business”).

13. Securities. Company is not licensed as a securities broker or dealer and has no involvement in advertising, negotiating, or otherwise executing any related sale of stock. If Company introduces a prospect for the purchase of the Business assets, and the parties subsequently decide on a merger or stock sale, this decision shall not affect the Company’s right to its fees, which shall be paid as though an asset sale had been undertaken.
14. Representations. Neither Buyer nor Seller is relying upon any statements or representations made by Company 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 Seller’s own investigation of Buyer’s creditworthiness and ability to complete this transaction, repay any Seller financing provided, and operate the Business successfully. 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.
15. Fees. Buyer and Seller each acknowledge that Company may receive a contingency fee based on the purchase price of the Business and a referral fee from a third party, such as an institutional lender or other professional, and shall not engage any advisor for this Transaction unless such advisor also acknowledges Company’s fees. If Company’s fee is contingent on completion of the sale and completion is prevented due to the fault of Seller or Buyer, the party at fault shall be liable immediately for any balance due of the Company’s fee. Any amount that the Buyer has deposited shall be applied first against Buyer’s obligation under this paragraph. Any party that attempts or persuades others to reduce or impair the Company’s fee shall be liable for intentionally interfering with Company’s contractual rights. Liability of the Company in any litigation or other claim made shall be limited to the amount of any fees actually collected by Company in respect to the Transaction.

Agency Disclosure

Under applicable law, an “agent” is required to explain to sellers and buyers certain rules and concepts regarding agency and dual agency by giving such parties an “agency disclosure” form. This way, the parties can make an informed decision as to the type of relationship they wish to have with the agent. In this regard, Morgan & Westfield (“Company”) acts as an independent third party assisting a Seller with certain aspects of the Transaction. Unless Company specifies otherwise, Company has no power to bind the Seller, dispose of the Business, make any representations on behalf of Seller, or otherwise exercise any of the powers of an agent. 

1. Agency: If a competent authority determines that Company is acting as an “agent,” Company shall be deemed a single agent, acting only for the Seller and not the Buyer. Company does not represent the Buyer and shall not be deemed as a “dual agent.”
2. Full Disclosure: Under applicable law, the buyer and the seller of a business are each required to fully and fairly disclose to the other any, and all, information which is known to that party, or reasonably should be known, and which may or will be material to the other party’s decision to enter into the transaction. An agent must fully disclose all relevant information known to the agent to the party or parties that the agent represents. An agent, whether acting only for one party or as a dual agent, must make the same such disclosures to the other party, or the other party’s agent, and cannot withhold any material information which such agent may know or, in the exercise of reasonable diligence, should discover.
3. Price and Valuation: There is an exception to the rule that a dual agent must disclose all information in their possession. In representing both seller and buyer, the agent may not, without the express permission of the respective party, disclose to the other party that the seller will accept a price less than the asking price or that the buyer will pay a price greater than the price offered, even though there otherwise might be a duty to do so. 
4. Acknowledgment: Buyer and Seller each acknowledge and agree that: The party has carefully read and fully understands the matters discussed above and has had the opportunity to ask questions and/or to seek the advice of legal counsel in this regard.