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:
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:
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.
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.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, OR OTHERWISE, SHALL CAMPAIGNIUM BE LIABLE TO CLIENT OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF BUSINESS, COST OF REPLACEMENT SERVICES, OR LOSS OF GOODWILL. CAMPAIGNIUM’S LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO AN AGGREGATE AMOUNT EQUAL TO THE FEES PAYABLE BY CLIENT TO CAMPAIGNIUM DURING THE PRIOR TWELVE MONTHS UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF CAMPAIGNIUM HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.