YOU AGREE THAT BY USING THE SITES AND THE MSP OF OCA, YOU ARE AT LEAST 18 YEARS OF AGE AND YOU ARE LEGALLY ABLE AND QUALIFIED TO ENTER INTO THIS CONTRACT.
DISCLAIMER: The MSP purchased from or supplied by OCA are for educational purposes only and are in no way intended to replace your need for legal, tax, accounting, or other professional services. Any other use is at your own risk. OCA has no control how you might interpret or use the OCA MSP. OCA is not an attorney nor acting as your attorney or professional advisor, nor does OCA make any warranty or guarantee, expressed or implied, regarding the accuracy, completeness, or legal sufficiency or desired effect of any of the MSP purchased by you or supplied to you. The MSP is to assist you with a general understanding of the business sale/acquisition transaction process of a small business, as well as some of the forms, tools, templates, documents, and information that might be utilized. By purchasing or using the MSP of OCA you agree: (i) you have read, understand, and agree with this Agreement in its entirety, (ii) to HOLD OCA HARMLESS from any action that might arise from the use or interpretation of the Sites or MSP of OCA, (iii) you will not resell any of the MSP of OCA, (iv) you will not copy or alter the MSP of OCA and subsequently resell them, and (v) the MSP of OCA is only for your personal use and will not be provided or distributed by you to others for commercial use, and (vi) that a violation of either parts (iii), (iv), and (v) would be damaging to OCA.
- Representation and Responsibilities. Seller represents self in the course of preparing, negotiating, and consummating the sale of Seller’s business, and is solely responsible for representations, methods and processes used to promote and sell the business.
- Seller Authorization. Seller represents and warrants that Seller is at least eighteen (18) years of age, mentally competent, legally able and qualified to enter this Agreement, duly and unconditionally authorized to enter this Agreement, has authority to execute all documents to complete and consummate the sale process, duly represents all owners, partners, members, and shareholders of Business, and personally guarantees performance of this Agreement.
- Documents and Business Information. Seller will cooperate with OCA in efforts to perform under this Agreement, promptly furnish OCA information requested, and keep OCA informed of activities which may affect OCA’s or Seller’s ability to perform under this Agreement.
- Materials, Services, and Products. The Materials, Services, and Products, Recommendations, Forms, Tools, Samples, Templates, Documents, Websites, Tips, Guidance, Videos, and Information by OCA (hereinafter, “MSP”) are for educational purposes only and are not intended to replace Seller’s need for legal, tax, accounting, or other professional services. Any other use is at Seller’s own risk. OCA has no control how Seller might interpret or use the OCA MSP. OCA is not an attorney nor acting as Seller’s attorney or professional advisor, nor does OCA make any warranty or guarantee, expressed or implied, regarding the accuracy, completeness, or legal sufficiency or desired effect of any of the MSP supplied. MSP is to assist Seller with a general understanding of the business sale transaction process of a small business, as well as some of the forms, tools, templates, documents, and information that might be utilized. The ONLY MSP provided to the “FSBO” Seller shall be: the FREE Market Value Snapshot Report, the placement on websites as outlined in Part 11 herein, and the forwarding of buyer inquiries as outlined in Part 12 herein. By using the MSP of OCA, Seller agrees: (i) Seller will not resell any of the MSP of OCA, (ii) Seller will not copy or alter the MSP of OCA and subsequently resell it, and (iii) the MSP of OCA is only for Seller’s personal use and will not be provided or distributed to others for commercial use, and (iv) that a violation of either parts (i), (ii), and (iii) would be damaging to OCA. Upon its sole discretion, OCA reserves the right to refuse to sell or provide MSP to Seller or any party.
- Use of Materials, Services, and Products. Seller understands and agrees that any MSP received from OCA is not customized to Seller’s particular needs. OCA grants the “Deal Coach” Seller a limited, personal, non-exclusive, non-transferable use of OCA MSP for Seller’s own personal, internal business use. Seller agrees Seller has no right to modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the OCA MSP in any manner, except for modifications for Seller’s personal use only. Seller agrees not to remove any copyright, trademark, footer or watermark notice from any OCA MSP. Seller agrees the MSP received may only be used by Seller for Seller’s personal or business use, and may not be sold, disseminated or redistributed without the express written consent of OCA.
- Limited Permission. OCA grants the “Deal Coach” Seller permission to download, view, copy and print the MSP documents Seller has: (a) purchased, or (b) received from OCA on any computer solely for Seller’s personal, informational, non-commercial use provided that (i) any copyright, trademark notice, footer and watermark appearing in the MSP remains in or on the MSP, (ii) the MSP is not used on any other Web site or in a networked computer environment, (iii) the MSP is not modified in any way, and (iv) nothing herein shall allow, and Seller is hereby expressly prohibited from, recording by any means or methods, embedding or hyperlinking, or copying or storing any OCA or Deal Coach videos or video files. The permission terminates automatically without notice if Seller breaches any of the terms or conditions herein. On any such termination, Seller agrees to immediately destroy any downloaded or printed MSP. Any unauthorized use of any OCA MSP contained on the Sites may violate copyright laws, trademark laws, laws of privacy and other regulations and statutes.
- Intellectual Property. Seller understands and agrees that all OCA MSP is the intellectual property and an asset of OCA and its authors. Authors are an intended party and beneficiary whose rights are being protected and who may enforce terms of this Agreement, as if they are a party hereto.
- Ownership. The Sites and MSP are owned and operated by OCA. All right, title and interest in and to the Sites and MSP provided, including but not limited to information, text, samples, documents, tools, templates, downloads, logos, graphics, videos, sounds and images (also a part of the “MSP”) are owned by OCA or by OCA’s respective third-party authors, developers or vendors (“Third Party Providers”). Except as otherwise expressly provided by OCA, none of the MSP may be copied, reproduced, republished, downloaded, uploaded, posted, displayed, transmitted, resold, or distributed in any way and nothing on the Sites shall be construed to confer any license under any of OCA’s intellectual property rights. Any rights not expressly granted to Seller herein are reserved by OCA.
- Services and Non-Refundable Policy. The “Deal Coach” Seller is paying OCA for a “Sellable Ranges of Value” Report that may be in alignment with buyer and seller market conditions, and for a thirty day subscription of access to Deal Coach Seller videos, and for the use of the MSP (OCA’s intellectual property) as that may help the “Deal Coach” Seller in preparing Seller’s business for a sale, and to enter into this Agreement and receive the Deal Coach Seller Package. OCA will provide the “FSBO” Seller with a FREE Market Value Snapshot Report that may assist the “FSBO” Seller in preparing for a sale of the business. OCA will electronically provide Seller with buyer contact information provided buyer completes required information and inquires specifically about Seller. The compilation of the “Sellable Ranges of Value” Report and MSP is the “Deal Coach Seller Package” and will be provided soon after the “Deal Coach” Seller’s payment is processed and with confirmed execution of this Agreement. Seller will have thirty (30) calendar days of subscription from the date the MSP is sent, to access the Deal Coach Seller Package videos. Seller’s access to the Deal Coach Seller Package videos will terminate after thirty (30) days from when the MSP was sent to Seller. Whether Seller utilizes all or any portion of the MSP, Seller remains bound to the terms, conditions, and obligations herein. Seller understands and agrees OCA has no control, responsibility, or ability to assure Seller has the necessary devices or streaming speeds or available service providers to access the videos, and Seller hereby accepts that responsibility and risk. Seller understands and hereby agrees that as soon as the Sellable Ranges of Value Report or MSP has been sent to Seller, Seller has received valuable benefit, and therefore Seller understands and agrees the payment is non-refundable. Soon after OCA receives notice from the “Deal Coach” Seller of a pending Sale Transaction as outlined in Part 16 herein, OCA will provide the “Deal Coach” Seller with additional MSP and thirty (30) calendar days from the date the additional MSP is sent, to access and view the Deal Coach Bonus videos, to help the “Deal Coach” Seller in preparing and navigating toward a Closing. The compilation of the additional MSP and Deal Coach Bonus videos provided by OCA is the “Deal Coach Bonus”.
- Non-Transferrable Rights. Seller’s rights of access to or use of the Sites, or any of the MSP are non-transferrable to another party or entity, under any circumstance whatsoever.
- Placements On Websites and Limited Information. Limited information about Seller’s Business may be publicly viewed on websites owned or operated by OCA (herein, “Sites”), which may include: Heading, Industry, Type of Business, Revenues, Cash Flow, Years in Business, County and State location, and Asking Price. The placement on Sites may be that of “Featured” or similar term for the “Deal Coach” Seller. OCA will not identify Seller’s name or that of Business or any contact information of either, without express permission from Seller. Placement on Sites will terminate either: (i) on the termination date of this Agreement, or (ii) Seller’s written notice to OCA requesting to be removed from Sites, or (iii) upon the discretion of OCA. Termination from placement on Sites does not terminate this Agreement.
- Marketing Push and Buyer Contact. OCA may input limited information provided by Seller into electronic templates and “push” the “Deal Coach” Seller’s business opportunity directly to OCA’s database of contacts deemed appropriate by OCA. Upon inquiry about Seller’s specific business sale opportunity from a prospective Buyer, and provided Buyer completes the required information, OCA will forward the Buyer’s contact information to Seller electronically. It is Seller’s responsibility to maintain a valid, working email address and to keep OCA updated of the address. It is Seller’s sole responsibility to contact the inquiring Buyer to begin discussions about the sale opportunity.
- Access to Information and Risk of Use. Seller understands and agrees OCA will not and has no duty to qualify or verify: (i) users of OCA Sites, (ii) prospective buyers who may inquire about Seller, (iii) prospective buyers with whom Seller chooses to communicate or do business with. Seller agrees to hold OCA harmless from any damages or loss in any manner as a result of users of the Sites or prospective buyers or their respective advisors, agents or representatives. Although OCA utilizes reasonable steps to maintain system security and protection of information and identity, and OCA makes no guarantee of system security or protection of Seller’s information or identity. If Seller believes system security has been breached or Seller’s information accessed without authorization, Seller should immediately contact OCA in writing. Seller agrees that OCA shall not be liable for any losses Seller incurs as a result of someone accessing Seller’s information. Seller grants OCA access to all information and documents provided by Seller.
- Economic Benefit. Economic Benefit is all consideration, in whatever form paid, given, or conveyed directly or indirectly to the Business, its affiliates, the Seller or any party or entity controlled by or associated with any of them in connection with any Sale Transaction, whether received at or before closing or to be received at a future date. Economic Benefit also includes, promises to pay, debt (new or assumed), agreements to indemnify or hold harmless any party for any liability, assumption or release of leases, cancellation of liabilities, payments for consulting, management, employment, or non-compete agreements, licensing or lease agreements, joint ventures, payments for commercial or personal goodwill, assets exchanged, bonuses, earn outs, royalties or forms of value or equity of any type.
- Compensation To OCA for Services. Part 15 does not apply to the “FSBO” Seller. Economic Benefit shall not be discounted because its receipt is to be deferred until after closing of a Sale Transaction, or whether or not OCA is the procuring cause. Compensation attributable to Economic Benefit in the form of royalties or performance based future payments, which value cannot be determined at closing due to being based on future performance or events, may be deferred and due and paid within thirty (30) calendar days as such royalties or earn outs are earned. Compensation for MSP, Coaching and Marketing services shall be paid to OCA by Seller through the closing of a Sale Transaction and be based upon three percent (3%) of the total Economic Benefit or Five Thousand Dollars ($5,000.00), whichever is greater. Whether Seller utilizes all or any portion of the MSP, coaching or marketing, Seller is bound to the terms, conditions, and obligations herein. OCA is entitled to Compensation on sale or lease of real estate excluded from the sale of the Business, but owned by the Business or Seller and used by the Business, if such is sold or leased during the Term of this Agreement or within two (2) years thereafter to any party introduced as or known to be a prospective purchaser of Business or such real estate during the Term.
- Sale Transaction and Notice of Closing. A sale, merger, reorganization, conveyance, capital infusion, addition of joint venture partners, offers and letters of intent to purchase or any manner or form of payment or economic benefit to Seller shall be referred to as a Sale Transaction. Seller agrees to immediately provide OCA an executed copy of each Seller and Buyer agreed Offer to Purchase or Letter of Intent to Purchase the Business or any other documentation used to outline the terms of a Sale Transaction, and Seller shall provide OCA in advance, contact information of the entity coordinating the Closing and a copy of the Closing Statement.
- First Right of Refusal for Broker / Intermediary Services. In the event Seller pursues a sale or merger of Business during the term or for twelve (12) months immediately following termination, by using the services of an agent, representative, business broker, or intermediary, then Seller shall notify OCA immediately and hereby grants OCA a first right of refusal to represent Seller in a contemplated sale based upon OCA’s then current standard terms and conditions, of which Seller would reasonably agree.
- Cancellation or Non-Performance. If Seller refuses or fails to comply with terms of this Agreement, for any reason, actual damages to OCA would be difficult or impossible to determine. If Seller sells, leases, trades, or disposes any part of the Business or ownership, or enters a letter of intent or offer to purchase, contract or option for sale, or enters any agreement or commits any act tantamount to such a sale, or lease or conveyance to procure Economic Benefit, either: (i) without properly notifying OCA as required herein, or (ii) within two (2) years after the Term of this Agreement with any prospective purchaser who became aware of the Business through OCA’s efforts during the Term, or Seller was aware wanted to purchase during the Term, then Seller shall pay compensation to OCA as provided herein for liquidated damages. Cancellation or rescission of any of the foregoing acts shall not release Seller from Compensation for liquidated damages. “FSBO” Seller has no liability of Compensation for liquidated damages.
- Term and Termination. Provided Seller’s payment has been processed, this Agreement shall be in effect for a period of twelve (12) months from the date execution of this Agreement is confirmed. (i) OCA may terminate Seller’s rights of use in its sole discretion at any time. Causes for termination by OCA may include, but are not limited to: (a) permitting or enabling third parties to have access to MSP, (b) utilizing MSP for purposes other than those intended by OCA, (c) using documents or information that Seller does not have legal or lawful permission to disseminate, or misrepresenting the business sale opportunity, and (d) OCA deems the business sale opportunity out of alignment with OCA’s goals and objectives. (ii) Termination will become effective on the termination date of this Agreement. (iii) Termination does not relieve Seller of terms, conditions, and obligations outlined herein.
- Assurances. Seller warrants that: (a) OCA may claim appropriate credit for services provided, such as announcements or press releases as OCA may elect, and (b) this Agreement is binding upon OCA and Seller, their heirs, successors, assigns, executors and administrators.
- Indemnity. Seller indemnifies and holds harmless OCA from any action that might arise from the use or interpretation of the MSP and against any liability, claim, damage, cause for action, losses, costs for expenses, attorneys’ fees, and fees on appeal asserted by third parties, arising out of breach of this Agreement, its covenants, and Products or Sites or Materials or Services performed or provided by OCA under or in connection with this Agreement.
- Limitation of Liability. Seller agrees that OCA shall not be liable for: (i) any damages, whether indirect, punitive, special, incidental, or consequential, (ii) loss of business, revenue, income, employment, customers, vendors, employees, time, information, documents, or data, as a result of or arising out of Seller’s use of the MSP, even if Seller has advised OCA of the possibility of such damage. Seller assumes all responsibility for any costs for repairs or servicing of Seller’s equipment or data as a result of or arising out of Seller’s use of the MSP.
- Disclaimer. OCA makes no guarantee or representation, express or implied, that OCA or any of OCA’s MSP, including coaching, marketing, suggestions, Deal Coach Seller Package or Deal Coach Bonus or efforts will result in a Sale Transaction.
- Governing Law and Venue. This Agreement, its interpretation, construction, and enforcement shall be governed by the laws of the State of Oklahoma, and any controversy, claim, dispute, or action, arising out of or relating to this Agreement, shall be decided in state court in Tulsa County, Oklahoma, unless agreed otherwise, and the Parties expressly consent to the venue and jurisdiction of such court as sole and exclusive proper venue under this Agreement.
- Severability and Assignment. If any provision, paragraph, section, sentence, clause, or phrase contained in this Agreement, is held to be unenforceable, void, or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions, or portions thereof, shall not be affected thereby. In such event, each so held as unenforceable or invalid shall be deemed to be modified so as to constitute a provision conforming as nearly as possible to such unenforceable void or invalid element while still remaining valid and enforceable, and the remaining terms hereof shall not be affected thereby. Seller understands and agrees that OCA may assign its rights under this Agreement to any OCA Affiliate, Partner, or third party.
- Entire Agreement. This Agreement constitutes the entire agreement between OCA and Seller pertaining to its subject matter and supersedes all prior and contemporaneous agreements, representations, and understandings between them. No statements, promises, agreements, understandings or representations have been made as inducements to enter this Agreement or that were material in the Seller’s mind or a part of Seller’s decision to enter this Agreement, except as specifically made in writing as a part of this Agreement. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by OCA and Seller.
- Other. Seller acknowledges and agrees that OCA has not guaranteed any sale price or outcome.
Defined Terms: The following capitalized terms shall have the following meanings for purposes of this Agreement:
- OCA – Shall mean, Oklahoma Corporate Acquisitions, Oklahoma Business Brokers, Inc., Oklahoma Commercial Realty, Inc., and any affiliated entities, and their respective principals, shareholders, officers, members, managers, directors, employees, representatives, and agents.
- Affiliate – Shall mean, any individual(s) or entity that does business with or on behalf of Seller or OCA, and who either has recognized formally or informally as an individual or entity that works collaboratively and cooperatively as an associate of Seller or OCA.
- Agreement – Shall mean, this “FSBO – Deal Coach Seller Package Agreement”.
- Buyer – Shall mean, (i) any individual(s) or entity(s) who express or purports to be searching for a business to purchase or merge with, or (ii) any individual(s) or entity(s) who makes or attempts to make inquiry or communicate with a Seller with the intent to discuss or negotiate the contemplated sale of a business.
- Materials – Shall mean, any and all Materials, Services, Products, information, and audio or visual aids.
- Partner – Shall mean, any individual(s) or entity that Seller or OCA has formally recognized as an individual or entity that works collaboratively and cooperatively as an agent in association with and on behalf of Seller or OCA.
- Posted – Shall mean, documents, information, and audio or video files placed on the Sites.
- Products – Shall mean, a tangible and created work, ordinarily in the form of a document, tool, or template.
- Sale Transaction – Shall mean, offers and letters of intent to purchase, the sale, divestiture, lease, trade or disposition in the form of a merger, refunding, recapitalization, or a reorganization, conveyance, or capital infusion, or other corporate restructuring of a business, or a transfer of all or any portion of the assets or operations of a business, or of the Seller’s equity ownership of the business or assets used by the business, to: any person or entity, including but not limited to related or unrelated parties, corporations, partnerships, limited liability companies, existing partners, relatives, shareholders, an employee stock ownership plan, investors, or joint venture partners, with the intent of receiving economic benefit.
- Seller – Shall mean, (i) any individual(s) or entity who owns a business and has expressed or purported to have an interest in contemplating the sale of the business, and (ii) has entered into this “FSBO – Deal Coach Seller Package Agreement”.
- “Deal Coach” Seller – Shall mean a Seller who has entered a “FSBO – Deal Coach Seller Package Agreement” as a “Deal Coach” Seller.
- “FSBO” Seller – Shall mean a Seller who has entered a “FSBO – Deal Coach Seller Package Agreement” as a “FSBO” (For Sale By Owner) Seller.
- Services – Shall mean, any OCA assistance, or available OCA assistance intended for another party.
- Sites – Shall mean, websites owned or operated by OCA or OCA’s affiliates or their principals.
- Uploaded – Shall mean, documents, information, and audio or video files electronically transferred between two computer or electronic systems.