Terms and Conditions of Service

This Terms and Conditions of Service (the “Agreement”) is entered into by and between Campaignium, LLC, a Missouri limited liability company (“Campaignium”), and you (the “Client”), effective on the earliest of when you consent to that certain marketing proposal prepared for you by Campaignium (the “Marketing Agreement”), or the date services are first provided (the “Effective Date”).


In consideration of the mutual promises, covenants, and conditions set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, Campaignium and Client agree as follows:

1. Provision of the Services

  1. Terms of Service. By agreeing to the Marketing Agreement, whether by signing it (electronically or otherwise) or by instructing Campaignium via email or otherwise to proceed with the Services, Client agrees to be bound by all the terms of this Agreement and the Marketing Agreement.
  2. Fees and Expenses.  Client shall pay Campaignium the fees, out-of-pocket expenses incurred by Campaignium to perform the Services, taxes, and other amounts in accordance with the terms set forth in the Marketing Agreement (collectively the “Fees”).  All Fees shall be due and payable at the times and in the manner set forth in the Marketing Agreement. All such amounts shall be nonrefundable and payable in U.S. dollars.  If no due date is specified in the Marketing Agreement, all Fees shall be due within 30 days of the date the invoice sent for such Services.  The unpaid balance of any late payments shall be subject to the lesser of 1.5% interest per month or the maximum allowed by law.  Campaignium reserves the right to temporarily suspend Services under one or more Marketing Agreement(s) until past due amounts are paid; such temporary suspension will not affect the amounts due and owing for services performed.
  3. Price Increases.  Campaignium reserves the right to increase its pricing for Services provided under a new Marketing Agreement or upon the renewal date of any existing Marketing Agreement.
  4. Collection. There will be a $300.00 fee on all returned checks, plus any additional bank fees incurred by Campaignium. Client shall pay all attorneys’ fees and costs incurred by Campaignium in the collection of any amounts due to Campaignium and not paid by Client in accordance with the terms of this Agreement.
  5. Taxes. The charges for the Services described in the Marketing Agreement do not include taxes.  If Campaignium is required to pay any federal, state, country or local sales, use or similar taxes based on the Services provided under the Marketing Agreement, the taxes shall be itemized, billed to and paid by Client.  Client shall not be responsible for taxes based on Campaignium’s income, payroll taxes, and any other taxes pursuant to this Agreement.

2. Definitions

In addition to those terms defined in the body of this Agreement, the following words, terms and phrases, where written with an initial capital letter will have the meanings set forth below:

  1. Company Equipment” means computer hardware, software, telecommunications or other equipment owned or operated by Campaignium, including the host server, used to provide the Hosting Services.
  2. Hosting Services” means any web hosting services described in the Marketing Agreement.
  3. Hosted Sites” means the websites that Campaignium agrees in writing to host pursuant to this Agreement, which are initially those set forth in the Marketing Agreement, and such other Client Sites as the parties may mutually agree in writing from time to time. Campaignium must approve each such additional Client Site in writing before such additional website will be deemed a Hosted Site. Each Hosted Site will be designated by a unique domain name, and each unique domain name hosted by Campaignium will be deemed a separate Hosted Site. Client may not provide any hosting for any third parties through any Hosted Site without the prior written approval of Campaignium.
  4. Campaignium Content” means the content created by Campaignium or its contractors during the term of this Agreement, including but not limited to text, logos, scripts, software, photo and video files, electronic documents, and all other content of any type.
  5. Client Content” means the content created by Client during the term of this Agreement, including but not limited to text, logos, scripts, software, photo and video files, electronic documents, and all other content of any type.
  6. Client Marks” means all trademarks, trade names, service marks and logos of Client provided by Client to Campaignium for use under this Agreement.
  7. Outside Content” means products that may include, but are not limited to server-side applications, clip art, “back-end” applications, music, stock images, or any other copyrighted work which Campaignium deems necessary to purchase on behalf of Client to provide the Services.
  8. Services” means the Services to be provided by Campaignium which are described in the Marketing Agreement.
  9. Deliverables” means any products resulting from Services that will be delivered to or used on behalf of Client including but not limited to images, code, software, and websites.

3. Hosting Services

  1. Service Levels.  Campaignium, in its sole discretion may set Service Levels for its Hosting Services by posting such Service Levels on its website or sending the Service Levels to Client.  Client is deemed to agree to the Service Levels if Client does not terminate this Agreement within seven (7) days from posting or delivery.  In no event shall Campaignium be liable for any damages or costs of any kind incurred by Client as a result of Campaignium’s failure to meet any of the Service Levels.
  2. Personally Identifiable Information. In the performance of the Hosting Services, Campaignium may receive or the Hosted Sites may contain data that can be used to uniquely identify, contact, or locate an individual or can be used with other sources to uniquely identify an individual (“Personally Identifiable Information” or “PII”). Client shall at all times, and at its own expense, comply with, and cause the Hosted Sites to comply with, all applicable laws, rules, regulations and governmental orders, now or hereafter in effect, relating to applicable data privacy for such PII. Client shall be responsible for informing Campaignium of the existence of any PII on the Hosted Sites and for preventing the transmission of any PII to any unauthorized third party, or any use of the PII for any reason except as permitted by all applicable laws. In the event PII is required to be disclosed by Campaignium under an order of a court or government agency it may do so without liability to Client, provided that the Campaignium shall make reasonable efforts to give prior written notification to the Client of such obligation and the opportunity to oppose such order. Client and Campaignium may mutually agree upon a privacy policy to govern the Hosted Sites, and each party shall comply therewith.
  3. Prohibited Content. Neither the Client Content nor the Hosted Sites will (i) contain or permit to appear any defamatory or libelous material or material which discloses private or personal matters concerning any person, without such person’s consent, or violate the privacy policy established for the Hosted Sites, or (ii) contain or permit to appear any messages, data, images, keywords, file names, or programs which are illegal, X-rated, contain nudity, sexually explicit content, are obscene or pornographic, or are otherwise tasteless materials. Client shall not provide to Campaignium or store on any Hosted Site any information containing medical information for any third party or that would cause Campaignium to be subject to regulation pursuant to Health Insurance Portability and Accountability Act of 1996, P. L. 104-191, as it may be amended or replaced, and its implementing rules and regulations (“HIPAA”) and any other similar state or federal laws.
  4. Abusive Activities and Other Threats.  Client acknowledges and agrees not to use the Hosted Sites as a source, intermediary, reply to address, or destination address for “phishing”, or other email-based mass-marketing, deceptive, or fraudulent activities, for purposes of unauthorized access to any computer system anywhere, hosting of malware, dissemination of computer viruses, Internet packet flooding, promotion or hosting of information on hacking, packet corruption, denial of service, software or scripts that unreasonably utilize system resources, or other abusive activities, as determined by Campaignium in its sole and absolute discretion. Campaignium may suspend access to the Hosted Sites if they are used for any of the foregoing activities.
  5. Infringement; Take-Down Notice. Campaignium maintains a strict policy of removing content that contains or is alleged to contain any messages, data, images, programs or other material that would violate the intellectual property rights of others, including but not limited to unauthorized copyrighted text, images or programs, trade secrets or other confidential proprietary information, or trademarks or service marks used in an infringing fashion. Client will not include or display any such material on any Hosted Site, or include or incorporate any such material in any Client Content. Client acknowledges and agrees that if Campaignium receives a notice of any alleged infringement of any copyright as contemplated by the Lanham Act, the Digital Millennium Copyright Act, any state trademark or unfair competition law, or other similar laws then Campaignium shall have the right to take whatever actions it deems necessary in its sole and absolute discretion to comply with the those laws, including disabling the Hosted Sites or removing content from the Hosted Sites. Client agrees to indemnify and defend Campaignium from any Costs arising from the use of the Client Content on the Hosted Sites, and from any use or allegations of use of the Hosted Sites by Client that is infringing of the rights of others.
  6. Responsibility for Users. The rights of Campaignium with respect to the content, security, standards and other matters with respect to the Hosted Sites will extend to the conduct of the users of the Hosted Sites and the content placed on the Hosted Sites, including but not limited to the right of Campaignium to remove any material described in this Section.
  7. Subcontractors. Client acknowledges that Hosting Services may be provided using a third party hosting provider, and that Campaignium is not responsible for, and shall not be liable to Client for (i) any loss of service or data caused by the hosting provider, (ii) the failure of the hosting provider to provide a certain amount of website “uptime” or to meet any other service level, (iii) any breach of security of the hosting provider’s systems, or (iv) any unauthorized access to or theft of data from Client or the Hosted Sites. Client hereby releases Campaignium from any liability it may otherwise have arising from any of the foregoing occurrences. Client agrees to pay the fees charged by the hosting provider for its services, either directly to the hosting provider or to Campaignium, if such fees are invoiced to it.

4. Data Security

  1. Data or Security Breach. If Campaignium learns of any data or security breach, or theft of data relating to the Marketing Agreement or from one of the Hosted Sites, it shall notify Client of such event as soon as reasonably possible, and Client agrees to comply, at its sole expense, with all applicable laws regarding notification of its employees, customers, or others of the occurrence of such security or data breach. Client acknowledges and agrees that, for the purpose of all applicable laws relating to data security or data breach events, Client is the owner of all of the data held by Campaignium in providing the Services or stored in the Hosted Sites. Client hereby agrees to indemnify and defend Campaignium, and to reimburse it, for any Costs arising from Client’s failure to comply with an applicable law regarding such data breach or similar event. Client agrees that Campaignium may utilize and disclose Client’s data if necessary to comply with applicable laws regarding a data breach or similar event, including to provide notice of the data breach to Client’s customers, at Client’s sole expense.
  2. Disclaimer. Client acknowledges and agrees that websites and the underlying computer systems on which they operate are complex combinations of software and hardware from many different vendors and utilizing many different technologies, each of which provide potential weaknesses that may be exploited by third parties to procure unauthorized access to such systems. To the extent that Deliverables provided by Campaignium, or the Client’s website supported by Campaignium, include security features developed or implemented by it, Campaignium expressly disclaims any and all warranties or representations regarding the security of the Deliverables from unauthorized access or other “hacking”, or the theft of data.

5. Term and Termination

  1. Term. This Agreement shall continue from the Effective Date until it is: (1) terminated by one of the parties by no less than 90 days written notice to the other party, (2) terminated by one of the parties due to an Event of Default by the other party, or (3) there is a three (3) month lapse from the time of the last Services provided by Campaignium.  Termination of the Agreement shall not relieve Client of its obligation to pay for any outstanding invoices or for services provided up until termination, or after termination for work in progress still to be completed at Client’s request.
  2. Effect of Termination. Any provisions that are of a continuing nature will survive any termination of this Agreement. Neither party will be liable to the other for damages of any sort resulting solely from the termination of this Agreement in accordance with its terms, except as otherwise provided herein or in the Marketing Agreement.
  3. Termination Assistance. Campaignium reserves the right to charge for any assistance it provides after termination at the then-current professional services rates charged by Campaignium to its clients, and Client agrees to pay such fees in advance of the provision of such services. Campaignium shall have no obligation to assist Client or allow it any further access to the Hosted Sites unless Client has paid all fees due to Campaignium through the termination date, and any fees required by Campaignium for post-termination access.

6. Default

  1. Client shall be in default of this Agreement upon the occurrence of any of the following events (each a “Event of Default”)
    1. The failure of Client to pay to Campaignium any amounts under this Agreement and the Marketing Agreement, when due, without the requirement of any notice or a cure period;
    2. The failure of Client to comply with each and every provision of this Agreement and the Marketing Agreement, as they may be amended in writing, upon expiration of the applicable cure period provided for therein, if any; or
    3. The commencement or occurrence of any voluntary bankruptcy or insolvency Proceeding by Client, or the commencement of any involuntary bankruptcy or insolvency Proceeding against Client which is not dismissed within ninety (90) days.
  2. Upon the occurrence of any Event of Default, Campaignium shall have the following rights and remedies:
    1. Immediately terminate this Agreement and the Marketing Agreement;
    2. Suspend the provision of any and all Services, including suspending access to and use of the Hosted Sites and Deliverables by Client and any third party, until such time as the Event of Default has been cured to the satisfaction of Campaignium;
    3. Require prepayment of future fees and expenses due to Campaignium before providing additional Services to Client pursuant to this Agreement; and
    4. Exercise, without any further notice, any and all rights and remedies it may have under this Agreement or the Marketing Agreement, or at law or equity.

7. Force Majeure

Campaignium shall not be liable for any delay in the provision of any Services if such delay or failure is due to any cause beyond the control of Campaignium, including without limitation, fires, strikes, embargoes, explosions, earthquakes, floods, wars, water, the elements, labor disputes, government requirements, civil or military authorities, acts of God or by the public enemy, acts of terrorism or similar acts, inability to secure necessary materials, services or products for reasons beyond such party’s control, acts or omissions of vendors or suppliers not reasonably foreseeable, or the application of any law or regulation that would prevent the legal performance of this Agreement by Campaignium. However, the acts described in this Section shall not relieve Client of its obligation to pay for Services rendered and completed by Campaignium.

8. Indemnification

Client shall indemnify, defend and hold harmless Campaignium from all losses, costs, damages, liabilities and expenses, whether incurred as a judgment, settlement, penalty, fine or otherwise including, without limitation, attorneys’ fees, (collectively “Costs”) resulting from claims or causes of action brought by third parties arising directly or indirectly out of or resulting from the Services, Hosting Services, this Agreement, or the Marketing Agreement, whether or not caused by Campaignium; however, Campaignium will not be indemnified from any liability for fraud, bad faith, willful misconduct, or intentional breach of this Agreement.

9. Limitation of Liability


10. Confidentiality

  • (a) Definition. Each party recognizes that it might have access to Confidential Information of the other party. Each party will take reasonable precautions to protect the confidentiality of the other party’s Confidential Information, which precautions will be at least equivalent to those taken by such party to protect its own Confidential Information, and in no event less than a level of care that is reasonable within the industry and will neither disclose such Confidential Information to third parties nor use such Confidential Information for any purpose other than as permitted in this Agreement. For the purposes of this Agreement, “Confidential Information” means any private, proprietary or confidential information of the other party that is either marked as confidential or proprietary or, based on the content of the information or the circumstances of disclosure reasonably ought to be treated as confidential, including but not limited to trade secrets or other intellectual property; business affairs, plans or strategies; financial information, including projections and information gained through any credit verification; and information relating to software products, including product plans, source code, object code, processes, ideas, and designs. Confidential Information also includes the terms of any Marketing Agreement(s) executed by the parties.
  • (b) Exceptions. Such restrictions will not apply to Confidential Information that the receiving party can show: (i) is already, or otherwise becomes, publicly known by third parties other than by an act or omission of the receiving party; (ii) the receiving party knew prior to receiving such information from the disclosing party; (iii) the receiving party independently develops without reference to the Confidential Information; or (iv) the receiving party lawfully receives from a third party having the right to disseminate such information without restriction on disclosure. Furthermore, each party may disclose Confidential Information to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law after providing the other party with prior written notice and using all reasonable efforts to cooperate with the other party to limit disclosure to the greatest extent possible, within the confines of such legal requirements.
  • (c) Relief. The parties agree and understand that, in the event of the unauthorized use or disclosure of any Confidential Information, monetary damages would be insufficient to compensate the party against whom disclosure was made and that injunctive relief would be appropriate to prevent any such actual or threatened use or disclosure of Confidential Information. No remedy conferred on the aggrieved party by any of the specific provisions of this Agreement is intended to be exclusive of any other remedy, and each and every remedy will be cumulative and will be in addition to any other remedy at law or in equity. The election of one or more remedies by either party will not constitute a waiver of the right to pursue any other available remedy.
  1. Notice. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed given and received; (a) when delivered by hand; (b) when deposited with the courier if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail if also sent on the same day by another approved method of delivery; or (d) on the second day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to Client at such address provided in the Marketing Agreement, or if no address is provided, to Client’s registered office, to any address commonly known to be associated with Client, or to any address Client previously used in communications with Campaignium.  Such communications must be sent to Campaignium at the address listed in the Marketing Agreement.  The notices addresses may be changed by notice given in accordance with this Section.
  2. Relationship of Parties. 
    1. Independent Contractor Status.  This Agreement does not make either party the employee, agent or legal representative of the other for any purpose whatsoever. Neither party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other party.  Campaignium is an independent contractor.  Each party has and hereby agrees to retain full control over the employment, direction, supervision, compensation, and discharge of their respective employees. 
    2. No Joint Venture Relationship.  Nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the parties.   
    3. Non-Solicitation.  Each party agrees that, during the term of this Agreement and for a period of one (1) year after termination, it will not directly or indirectly solicit, induce, recruit, hire or enter into an independent contractor agreement or employment relationship with an employee of the other without the other party’s written consent; provided however, that general newspaper advertisements or other general circulation materials not specifically targeted at employees of such other party will not be deemed to violate the terms of this provision. 
  3. Publicity.  Campaignium may disclose the name and trademark of Client and a description of Client’s business for promotional purposes and for customer references on its worldwide web page, in press releases, and/or in other marketing materials.  In using Client’s name and trademark, Campaignium shall in no event represent that it has any rights, title or interest in and to the name and trademarks or other intellectual property of Client.  Client shall not disclose its relationship with Campaignium without Campaignium’s prior written consent.
  4. Compliance with Law.  Client is responsible for ensuring that all goods and services offered by Client, that all materials provided to Campaignium by Client to be used in connection with the Services under this Agreement, and that all aspects of Client’s business, comply in all material respects with all applicable laws and regulations in all jurisdictions in and to which the services are provided by Campaignium.  Client is also responsible for ensuring that Client is authorized under all applicable laws and regulations to offer, sell or deliver, as the case may be, all of Client’s products and Services in all jurisdictions in and to which the Services are provided by Campaignium.  Additionally, Client shall be responsible for maintaining all records pertaining to the sales of its goods and services in accordance in all material respects with applicable laws and to pay all taxes associated with such sales. 
  5. Ownership of Intellectual Property.
    1. Existing Work.  Campaignium will retain all rights in Campaignium Content and any intellectual property, including software, ideas, concepts, know-how, development tools, trademarks, techniques or any other proprietary material or information, that it (i) owned or developed prior to commencement of work covered by this Agreement or (ii) acquires or develops at any time independent of work covered by this Agreement and without reference to or use of the intellectual property of Client (“Existing Work”). 
    2. Third Party Licenses; Infringement.  If software, technology or intellectual property of a third-party vendor or licensor is to be included in the Deliverables or Hosted Sites or is needed for the implementation, use or maintenance thereof, Campaignium may specify, prior to final delivery thereof to Client and/or implementation thereof in Client’s business, that Client must (if Client has not done so already) enter into a license agreement with the applicable third-party vendor or licensor on generally available terms.  Each party shall notify the other of any allegations of trademark, copyright, patent or trade secret infringement made by any third party based upon the Services or the Deliverables.  Client agrees that Campaignium shall have no liability for any allegations or claims of infringement arising from Campaignium’s use of materials created or provided by Client, including Client’s trademarks, advertising copy, or other intellectual property of Client, and Client hereby indemnifies Campaignium for any such liability or allegation.
    3. Developed Work.  Client agrees and acknowledges that Campaignium shall retain all rights in (1) all original works of authorship that are made by Campaignium (solely or jointly with others), within the scope of this Agreement, and that are protectable by copyright, (2) any of Campaignium’s previously written or developed source code, documentation, and/or application programs that was modified to meet Client’s specific requirements, and (3)  all intellectual property rights, including copyrights, trade secrets, rights in Confidential Information (as defined above), patented or patentable inventions, trademarks, service marks, logos, trade dress and similar interests, which exist in or pertain to the Services and/or Deliverables (the “Developed Work”). 
    4. License by the Client. Client hereby grants to Campaignium a nonexclusive, royalty-free, worldwide license, effective throughout the term of this Agreement, to use, copy, modify, publicly display, distribute, perform, publish and reproduce the Client Content and the Client Marks, solely to provide the Hosting Services, subject to the terms and conditions of this Agreement. Client agrees that Campaignium may use examples of publicly distributed materials that Campaignium creates for Client as examples of Campaignium’s work, experience and capabilities, and Client hereby grants Campaignium a license to reproduce, display and distribute such materials in any media solely for such purposes.
    5. License by Campaignium. Subject to the terms and conditions of this Agreement, Campaignium hereby grants to Client a perpetual, royalty-free, transferable, nonexclusive license to use the Existing Work and Developed Work solely as incorporated into the Deliverables and Hosted Sites.  Client shall not sublicense, transfer, modify or create any derivative works based on the Deliverables or Hosted Sites without Campaignium’s prior written consent, and shall not use any of Campaignium’s Existing Work or Developed Work in any way except as provided in the Deliverables and Hosted Sites.
    6. Tools.  Campaignium will retain all right, title and interest in and to all methodologies, development, testing or technology-management processes, or routines, and development tools provided or used by Campaignium in performing the Services.
    7. Company Equipment. Campaignium retains all rights to all Campaignium Content and the Company Equipment. At no time shall Client have any ownership, property, or any other rights in, or file any lien on, any of the Campaignium Content or the Company Equipment.
    8. Trademarks. Client shall be responsible to review the Hosted Sites and confirm that all use of the Client’s trademarks on the Hosted Sites complies with Client’s trademark standards. Nothing contained in this Agreement will give either party any right, title or interest in or to any trademarks, trade names, logos or other intellectual property of the other party, except for the limited rights expressly granted hereunder.
    9. Outside Content. Client acknowledges and understands that any Outside Content used to design and develop the Hosted Sites is owned by Campaignium or third parties and cannot be transferred to Client and is hereby specifically not transferred to Client and shall remain the property of Campaignium or such third parties.
    10. Further Assurances.  Insofar as this Agreement provides that Campaignium shall own the Deliverables (except any third-party material) and a court of competent jurisdiction finds otherwise, Client agrees, at Campaignium’s request and expense, to execute and deliver an assignment or such other instruments of such Deliverables and to take such other reasonable actions as may be necessary or appropriate to evidence, perfect or give effect to this Agreement.
    11. Limitations.  No licenses will be deemed to have been granted by either party to any intellectual property, except as otherwise expressly provided in this Agreement.
  7. Miscellaneous.
    1. Insurance.  Client agrees to maintain in effect during the term of this Agreement and for a period of at least two (2) years after the termination of this Agreement an Errors’ & Omission Policy with a five million dollars ($5,000,000.00) per claim limit, including Privacy, Security, Cyber, and Media Liability Insurance providing liability coverage for the Hosted Sites for unauthorized access or disclosure, security breaches, data breaches, and system attacks, as well as infringements of patents, copyrights, or Client Marks that might result from this Agreement.  Campaignium may make a written request for a Certificate of Insurance or a copy of the insurance policy from Client, and Client shall provide the requested document within 5 days from the date the request is made.
    2. Non-Exclusive Engagement.  This Agreement is non-exclusive with respect to both parties.  Accordingly, nothing herein prevents Campaignium from entering into similar arrangements with others, including those considered by Client to be its competitors.  Client acknowledges that Campaignium has other business activities and Campaignium shall not be bound to devote all or any specific part of its time and attention to performance of the Services.
    3. Binding Effect; Assignment. This Agreement, including any Marketing Agreement(s), shall inure to the benefit of, be binding upon, and be enforceable against the parties hereto and their respective successors and assigns.  Neither party may assign any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other party. No assignment or delegation shall relieve the assigning party of its obligations under this Agreement or any Marketing Agreement(s), including but not limited to payment obligations.
    4. Amendment. This Agreement may not be altered, amended or otherwise modified by Client without the written agreement signed by the parties, except as expressly granted to Campaignium. 
    5. Waiver. No failure by either party to take any action or assert any right hereunder will be deemed to be a waiver of such right in the event of the continuation or repetition of the circumstances giving rise to such right.
    6. Severability. In the event that any of the terms of this Agreement are in conflict with any rule of law or statutory provision or otherwise unenforceable under the laws or regulations of any government or subdivision thereof, such terms will be modified to the extent necessary to be enforceable to the maximum extent possible, or if completely unenforceable the term shall be deemed stricken from this Agreement.
    7. Governing Law. This Agreement will be governed by, and interpreted and construed in accordance with, the laws of the State of Missouri, excluding its provisions on the conflicts of law. Any proceeding arising out of or relating to this Agreement or any of the transactions contemplated hereunder shall be brought in the courts of the State of Missouri, County of Greene, or, if it has or can acquire jurisdiction, in the United States District Court for the Western District of Missouri.  Each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding and waives any objection it may now or hereafter have to venue or to convenience of forum. The party prevailing in any dispute under this Agreement shall be entitled to its costs and reasonable legal fees.
    8. Completion/Delivery Dates.  Time is of the essence with respect this Agreement and the obligations hereunder. 
    9. Merger.  This Agreement and the Marketing Agreement constitute the entire understanding between the parties regarding the subject matter of this Agreement and supersedes all negotiations, representations, prior discussions and preliminary agreements between the parties.