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Last Updated: July  13, 2012

 

Welcome to the online, proprietary content management system for synagogues named "ShulCloud™" (the "Service") operated by RustyBrick, Inc., a New York corporation with an address at 250 West Nyack Road, Suite 200, West Nyack, NY 10994] (“RustyBrick”, “we”, “our”, or “us”).  The Service enables the participating synagogue subscriber who has registered with us by affirmatively indicating its agreement to abide by these Terms of Use (this “Agreement”) by means of a click-through consent or other legally enforceable mechanism ("Subscriber", "you", "your" or "yours") to use the rich functionality and user-friendly features of the Service.  This Agreement sets forth the terms and conditions which govern your use of the Service. 

 

The Service is a suite of web building tools and calendars and event management functionality and billing (see privacy policy for what I wrote) which enables Subscriber to manage and track various aspects of their synagogue memberships online and to interact with collected data using a variety of dynamic features.  For the sake of clarity, a prospective Subscriber using the Service on a trial basis shall also be deemed to be a "Subscriber" for purposes of this Agreement.  

 

1.         This Agreement.

 

1.1       Acceptance. Please read this Agreement carefully before accessing the Service.  In order to use the Service, you must first agree to abide by the terms and conditions set forth in this Agreement.  Subscriber indicates that Subscriber has read and agreed to be bound by the terms and conditions set forth in this Agreement by means of a click-through consent, where provided by RustyBrick, or otherwise upon commencing use of the Service.  If you do not agree to be bound by this Agreement, you are not authorized to use the Service.  Furthermore, you are not authorized to use the Service if (a) you are not of legal age or otherwise do not have the legal capacity to form a binding contract with RustyBrick, or (b) you are a person barred from using the Service either (i) under the laws of the country in which you reside or from which you are attempting to access the Service, or (ii) due to prior violations of this Agreement.  For the sake of clarity, if any of your employees or other representatives are agreeing to abide by this Agreement on your behalf, you and such employee or other representative hereby represent and warrant that such employee or other representative is fully authorized to bind Subscriber to the terms and conditions of this Agreement. Any individual executing this Agreement on behalf of a Subscriber shall be deemed to be the principal administrator of such Subscriber's access to the Service.

 

1.2       Modifications. We reserve the right to modify this Agreement at any time.  You agree to review this Agreement periodically to be aware of any such modifications.  You further agree that your continued use of the Service after any such modifications have been made shall be deemed to be your conclusive acceptance of any modified version of this Agreement.  We will indicate that changes to this Agreement have been made by updating the date indicated after “Last Updated” at the beginning of this Agreement.  We will be happy to provide you with prior versions of this Agreement upon your written request to us. If you do not agree to abide by the initial version or any modified version of this Agreement, then you are not authorized to use the Service.  The current version of this Agreement is accessible via the footer of the Service’s homepage.

 

1.3       Your Users.  In order to facilitate the user friendly access to the Service that we provide to your synagogue members who utilize the Service or whose information is otherwise posted to the Service (each, a "Member" and collectively, "Members"), we do not require Members to click through an agreement directly with RustyBrick in order for them to access and use the Service.  However, in order to protect ourselves from third party claims arising from or in connection with Members, we require that you ensure that Members have agreed to certain terms and conditions of using the Service prior to commencing their use of the Service.  Thus, you shall (a) post a copy of the (i) RustyBrick terms of use for Members, and (ii) the RustyBrick privacy policy which can be found at www.shulcloud.com/privacy (the "Privacy Policy"), both via a link on the footer of each page of your synagogue website in a manner which enables Members to freely view at any time how RustyBrick's terms and conditions regarding such Members use of the Service as well as RustyBrick's privacy collection, retention and use policies affect the information you or they provide through the Service, and (b) indemnify RustyBrick from any and all Claims (as hereinafter defined) brought by a Member or Members, or any third party on their behalf, in connection with their use of the Service.  

 

2.         Registration.

 

2.1       Subscriber Profile; Password.  You will receive a user ID and password (“Profile”) to access your registration account (“Account”).  You shall not allow any individual or entity to use your Profile to access the Service and you shall strictly safeguard the information that would allow any individual or entity to access the Service by using your Profile or Account.  You are solely responsible for your failure to strictly safeguard such information and/or to allow any other individual or entity to access or use the Service by using your Profile or Account.  You may not sell or otherwise transfer your Profile or Account or any portion thereof.  You shall notify RustyBrick immediately of any unauthorized use of your Profile, Account or any portion of the Service.  RustyBrick shall not be liable for any loss that results from the unauthorized use of your Profile or Account, either with or without your knowledge.

2.2       Accurate Information. You shall provide us with accurate, complete and current information about yourself while using the Service, and you shall update all information provided by you through the Service if and as soon as such information changes.

 

2.3       Disabling or Revocation of Account. We have the right to cancel your Account for any reason (without having to specify the reason) or for no reason at any time, as determined by us in our sole discretion, including without limitation if we believe you have violated this Agreement.  If we cancel or otherwise disable access to your Account, you may be prevented from accessing the Service, your Account details and/or any files or other various Service materials, including without limitation all texts, comments, icons, images, message, tags, links, photographs, audio, video and other content appearing through the Service (collectively, “Content”) which are contained in or accessible through your Account, all of which may be deleted by us.  Such termination will mean that you will also lose access to all of your Submitted Content (as hereinafter defined) as well as content provided by your Members, though you will be provided the opportunity to download all such information if so requested in writing by you within thirty (30) days of such termination.  If we terminate your Account for any reason other than for a breach by you of this Agreement, we will refund all prepaid and unused Fees (as hereinafter defined) paid by you and, provided that you request the following in writing within thirty (30) days of such termination, (a) provide you with or otherwise permit you to download a copy of all your Submitted Content and content provided by your Members, and (b) remove from the Service all PII from your Submitted Content and content provided by your Members.

 

2.4       Cessation of Services.  The form and nature of the services offered through the Service may change from time to time without prior notice to you.  As part of our continuing innovation, we may stop (permanently or temporarily) providing certain Service features to you in our sole discretion, without prior notice to you.   

 

3.         Privacy.  RustyBrick views the protection of your privacy and that of Members as an important responsibility.  The terms regulating the handling of personally identifiable information (“PII”) and other information submitted by you and Members in connection with the Service is described in the Privacy Policy.  By using the Service, you consent to the collection and use by us of your and Member PII and other information as described in the Privacy Policy.

 

4.         License; Fees.   

 

4.1       License.   You may use the Service for the purposes described in this Agreement for so long as you maintain a subscription to the Service, make timely payments of the Fees (as indicated below) and otherwise abide by the terms and conditions for using the Service which are set forth in this Agreement or which otherwise are communicated to you by RustyBrick from time to time. In the event that your subscription expires or is otherwise cancelled by us, you will have no further access to the Service including any of the Submitted Content (as hereinafter defined) you have posted either as the administrator or through  your Account or otherwise provided to RustyBrick. 

 

4.2       Our Fees.   Your right and the right of Members to use the Service is contingent upon your registering with us (as explained above) and your paying in a timely manner our then current subscription fees (collectively, "Fees").  A current price list of our various Fees can be found at http://www.shulcloud.com/planswhich price list may be updated by us, with or without notice, from time to time.  We reserve the right to increase or otherwise modify our Fees at any time.  Any increase or other changes related to Fees shall take effect immediately upon the expiration of your then current subscription term.  Unless otherwise stated, all Fees are quoted in U.S. Dollars.  Fees charged are non-refundable except for due to fraud or other extenuating circumstances, as determined by us in our sole discretion, or otherwise as expressly set forth in this Agreement. 

 

4.3       Processing Fees; Information.  In order to process Fees paid by you, you will be asked by us to supply certain payment information, including without limitation, your full name, address and credit card information.  You shall provide us with accurate, complete and current information at all times, and comply with the terms and conditions of this Agreement and any ancillary agreement by our credit card settlement provider or otherwise in connection with your payment of Fees.  RustyBrick and/or such a provider may store and use your payment information (including credit card information) for processing payments and for related reasons, and otherwise in connection with your requests.

4.4       All Charges Final.  Except as described in Section 4.5 below, all Fees incurred by you through your Account are final.  Your right to use the Service is conditional on our receipt of all applicable Fees.  If any payment of Fees cannot be charged to your credit card or if a charge is returned or rejected for any reason, including without limitation by means of a chargeback, we reserve the right to suspend or terminate your Account, which may involve the deletion of all of your Submitted Content (as hereinafter defined) or other Content saved to your Account.  You are fully responsible for all charges made under your Account.

4.5       Refunds of Fees.  In the event that we charge you any Fees in error, you shall be refunded (as a credit to your credit card) such mistakenly charged Fees upon either (a) our receipt of written notice by you regarding your claim that such an error has been made along with corresponding evidence of such claim, and the independent verification by us after we have undertaken a good faith review to investigate such claim, or (b) RustyBrick independently learning of and verifying that such an error has occurred.  Any refund provided by us shall be your sole remedy for any erroneous charge of Fees by us or any person operating on our behalf.  If you notice any charge on your credit card account that was not authorized by you, you must immediately report this charge to us and to your credit card company. 

 

4.6       Taxes.  You are responsible for paying all Fees and applicable taxes associated with your use of the Service in a timely manner with a valid payment method.  If your payment method fails or your Account is past due, we will collect all Fees owed by you using other collection mechanisms (including without limitation deducting the amount owed from your credit card and for accounts over a certain number of days past due retaining collection agencies and/or legal counsel), and you shall be responsible for all costs we incur in taking such measures.

 

5.         Submitted Content; Review of Submitted Content; Usage Restrictions.

 

5.1       Submitted Content.  The Service offers Subscriber the opportunity for Subscriber and/or Members (if Subscriber enables such a feature) to post certain Content to the Service (collectively, “Submitted Content”).  You acknowledge and agree that (a) the provision of Submitted Content by you in no way imposes any obligation on RustyBrick other than those expressly set forth in this Agreement, the Privacy Policy, or by applicable law, (b) all Submitted Content submitted by you shall be accurate and shall not violate the copyright, trademark, patent, trade secret, right of publicity or any other intellectual property or other right of any individual or entity, (c) without limiting the foregoing, you will not post any Submitted Content to the Service which contains Trademarks (as hereinafter defined) of any third party or other materials prohibited under this Agreement or otherwise by applicable law or regulation, (d) you hereby waive any and all claims (including, without limitation, claims based upon invasion of privacy, defamation, false light, or right of publicity) arising out of any alteration, distortion or other use of your name, image or likeness or that of any third party which is included in any Submitted Content (including without limitation your photograph or the photograph of a third party), (e) you will not post any Submitted Content to the Service that was previously published or which is otherwise unoriginal and you shall pay all royalties, fees and any other monies owing or owed to any individual or entity by reason of any Submitted Content that you post to the Service, (f) Submitted Content may be subject to size and usage limitations (as determined in our sole discretion), and you are responsible for adhering to such limitations, (g) you will not post the PII of any child under the age of thirteen (13) to the Service unless you have fully complied with the provisions of the Children's Online Privacy Protection Act of 1998, as amended, and all related regulations and (h) all Submitted Content shall comply with all applicable sections of this Agreement (including without limitation the provisions of Section 5.3 hereof specifically), as well as with all applicable laws and regulations.  Without limiting any other provisions of this Agreement, if any of your Submitted Content includes the name, image or likeness of any person, you represent and warrant that you have the right to use such name, image and likeness of such person, and to use any photograph and/or other image of such person, however reproduced or depicted, in your sole discretion, and that such use is free and clear of any obligation (including without limitation the obligation of compensation to you or anyone else), and you hereby transfer all such rights to RustyBrick to the extent necessary for such Submitted Content to appear on and be used through the Service without RustyBrick incurring any liability whatsoever. 

 

5.2       Quality and Review of Submitted Content.  RustyBrick in general does not have, and shall not have, any obligation to review Submitted Content, and therefore we do not guarantee the accuracy, integrity or quality of any Submitted Content and we cannot assure that harmful, inaccurate, misleading, deceptive, offensive, threatening, defamatory, unlawful or otherwise objectionable Submitted Content will not appear on the Service.  Notwithstanding the foregoing or anything to the contrary in this Agreement, RustyBrick has the absolute right (but not the obligation) to pre-screen, review, flag, filter and monitor all Submitted Content as determined by us in our sole discretion, and that RustyBrick reserves the right to alter, edit, refuse to post or remove any Submitted Content, in whole or in part, for any reason or for no reason, and to disclose such materials and the circumstances surrounding their transmission to any third party in order to satisfy any applicable law, regulation, legal process or governmental request or to protect ourselves, Subscriber or Members, or our service providers, all as determined by us in our sole discretion. 

 

5.3       Usage Restrictions. You shall not (and you shall not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, translate, adapt, decompile (or attempt to translate, adapt or decompile) or otherwise attempt to extract any software underlying the Service.

You further agree not to use the Service in any manner that:

(a) is designed to interrupt, or destroys or limits the functionality of, any computer software or hardware or telecommunications equipment;

(b) interferes with or disrupts the Service, Services connected to the Service, or otherwise interferes with operations or services of the Service in any way;

 
(c) infringes any copyright, trademark, trade secret, patent or other right of any party (including the promoting of an illegal or unauthorized copy of another person's copyrighted work), or defames or invades the publicity rights or the privacy rights of any person, living or deceased (or impersonates any such person);

(d) is false, misleading, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, all as determined by us in our sole discretion;

(e) causes us to lose (in whole or part), or otherwise interferes with, the services of our licensors, internet service providers or other suppliers;

(f) consists of any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;

(g) links to or uses materials or other content, directly or indirectly, to which you do not have a right to link or use; or

(h) violates, or encourages others to violate, this Agreement or any ancillary agreement to this Agreement, or violates or encourages others to violate any applicable local, state, national, or international law or regulation.

5.4       Grant of License to Submitted Content.  By posting Submitted Content to the Service or by otherwise submitting Submitted Content to us, you automatically grant, and you represent and warrant that you have the right to grant to RustyBrick, a non-exclusive, perpetual, irrevocable, sub-licensable (through multiple tiers), assignable, fully-paid, royalty free, and worldwide license to use, copy, modify, adapt, publish, make, sell, publicly display, derive revenue or other remuneration from, communicate to the public, distribute (through multiple tiers), display all such Submitted Content (in whole or in part) through the Service, and to use all non-PII contained in such Submitted Content to create derivative works of or incorporate all such non-PII in other works in any form, media, or technology now known or later developed, and to grant and authorize sublicenses of the foregoing through multiple tiers of sub-licensees, including the right to exercise the copyright, right of publicity, and any other rights contained in or accompanying such non-PII for any purpose, including without limitation for purposes of advertising and publicity on the Service and elsewhere.  RustyBrick shall not be limited in any way in our use, commercial or otherwise, of any non-PII posted to the Service, and you hereby waive any moral rights in, and approval rights and rights of compensation to, all such non-PII that you or Members post to the Service or otherwise provide to us.  Further, we reserve the express right to incorporate any non-PII posted to the Service or otherwise conveyed by Subscriber or any Member to RustyBrick into any further work, in any medium now or hereafter known, without prior consent or review, and without attribution or payment of any royalty or fee whatsoever.  Other than for the limited rights granted above to us in your Submitted Content, you shall retain all rights, including without limitation ownership rights, in and to all Submitted Content.

 

6. Intellectual Property.

 

6.1       Proprietary Rights.  The Service contains various Content which is protected by the copyright, trademark and other laws of the United States and/or other jurisdictions.  Other than for the express rights granted in this Agreement, as between you and RustyBrick, all right, title and interest (including without limitation all copyright, trademark, patent, trade secret and other intellectual property rights) in and to (a) the Service (including without limitation all Content other than Submitted Content appearing therein) belongs to RustyBrick, and you have no rights in and to the Service other than as expressly set forth in this Agreement, and (b) the Submitted Content belongs to Subscriber, and RustyBrick has no rights in and to the Submitted Content other than as expressly set forth in this Agreement.  All third party Trademarks and/or other third party intellectual property appearing on the Service belong to their respective third party owners.   Except for Submitted Content or that information which is in the public domain or for which you have been given express written permission by RustyBrick, no Content may be sold, leased, copied, reproduced, republished, uploaded, displayed, posted, transmitted, distributed, modified, publicly performed, used in any derivative works based thereon or otherwise used for any public or commercial purpose without the prior written consent of RustyBrick.  However, you may print copies of materials on the Service for your personal, noncommercial use only, provided that you must keep intact all copyright, trademark, and other proprietary notices appearing therein and that you use such materials solely in the manner permitted by this Agreement, and not in any manner which competes with RustyBrick.

 

6.2       Copyright Agent.  The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe that your work has been copied and posted to the Service in a way that constitutes copyright infringement, please provide our copyright agent with the following information: (a) an electronic or physical signature of the copyright owner or of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of where the material that you claim is infringing is located on the Service; (d) your address, telephone number, and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.  Any notification by a copyright owner or a person authorized to act on such owner's behalf that fails to comply with requirements of the DMCA shall not be considered sufficient notice and shall not be deemed to confer upon RustyBrick actual knowledge of facts or circumstances from which infringing material or acts are evident.  RustyBrick's copyright agent for notice of claims of copyright infringement can be reached as follows:

 

Name:              RustyBrick, Inc. Copyright Agent

Address:           250 West Nyack Road, Suite 200, West Nyack, NY 10994

Telephone:      (845) 369-6869

Fax:                 845-228-8177

Email:              copyright@shulcloud.com

 

We suggest that you consult your legal advisor before filing a notice with RustyBrick’s copyright agent.  You should note that there can be penalties for false claims under the DMCA.  RustyBrick will, in appropriate circumstances and to the extent plausible, terminate the right of Subscriber or Members who infringe the rights of copyright holders to interact with certain portions of the Service.   

 

6.3       Trademarks.  RUSTYBRICK® and SHULCLOUD™ are Trademarks of RustyBrick.  All other Trademarks appearing through the Service are the property of their respective owners.  RustyBrick is not affiliated with, or sponsored or endorsed by, any third party trademark owner whose Trademark appears through the Service, and RustyBrick does not sponsor or endorse any third party Trademark or its owner.  As used herein, the term “Trademarks” means, collectively, all trademarks, service names, graphics, designs, logos, page headers, button icons, scripts, commercial markings, and trade dress appearing on the Service which indicate a source of goods or services.  Trademarks are protected by the trademark laws of the United States and/or other applicable jurisdictions.  You may not use, copy, reproduce, republish, distribute or modify any Trademarks in any way, including without limitation by using Content as permitted by this Agreement, without our prior written consent or the consent of such third party Trademark holder, as applicable.                            

 

6.4       Removal of Notices.  You shall not remove, obscure, or alter any proprietary rights notices (including copyright and Trademark notices) which may be affixed to or contained in part of the Service, and you shall abide by all such notices.

7.         Third Parties.  Your participation, correspondence and/or business dealings with any third party found on or through the Service (including without limitation Members), or used in conjunction with information provided through the Service (including without limitation by advertisements), and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such third party.  RustyBrick shall not be responsible or liable in any manner for any loss, damage, or other matter of any sort incurred as the result of any such dealings or otherwise involving such third parties.  If applicable, you shall pay all sales, transfer or other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of any transaction executed in connection with any third party with whom you communicate or have communicated by means of any Linked Site (as hereinafter defined) or otherwise in connection with your use of the Service.

 

8.         Links.  The Service may contain links to third party products or services (collectively, “Linked Sites”).  None of the Linked Sites are under the control of RustyBrick and RustyBrick is not responsible for the content of any Linked Site, including without limitation any link contained in a Linked Site, any changes or updates to a Linked Site or the availability of Linked Site, and RustyBrick does not endorse and is not responsible or liable for any content, advertising, services, products, or other materials on or available through a Linked Site, nor is RustyBrick responsible for any form of transmission received from or through any Linked Site whatsoever, including without limitation any computer viruses.  RustyBrick is providing Linked Sites to you for informational purposes only and as a convenience, and the inclusion of any such link through the Service does not imply an endorsement by RustyBrick of a Linked Site or any association with its operators or owners or an endorsement of RustyBrick by the operators or owners of such Linked Site.  All of your activity on or in connection with any Linked Site shall be subject exclusively to the policies and procedures of the owner of such Linked Site.

 

9.         Release.  You hereby release f RustyBrick and each of its directors, officers, shareholders, personnel, representatives, licensors, agents and independent contractors (collectively, the "RustyBrick Parties") from all claims, liabilities, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with a dispute between you and any third party, and/or between a Member and you or any third party, that is directly or indirectly related to your use of the Service or use of the Service by a Member or Members. 

 

10.       Representations, Warranties and Covenants.  You represent and warrant that (a) any of your employees or other representatives who agree to abide by this Agreement on your behalf are fully authorized to bind you to the terms and conditions hereof, (b) you have carefully read this Agreement and shall comply with all of your obligations under this Agreement, (c) you accept and will abide by the terms of this Agreement, the Privacy Policy and any other ancillary terms and conditions posted through the Service, (d) the posting of Submitted Content by you does and shall not violate any terms and conditions to which you are bound under this Agreement, any other applicable agreement, or any applicable law or regulation, (e) you are solely responsible for, and no RustyBrick Party has any responsibility to you or to any third party regarding (i) all Submitted Content that you upload to the Service or otherwise provide to us, and (ii) the types of permissions you grant, as administrator of your website through the Service, regarding public access to Submitted Content (whether by you or by your Members), and the consequences of your actions, including without limitation any loss or damage which any of the RustyBrick Parties may suffer related to such Submitted Content or the enforcement of any rights by you or any Member in and to such Submitted Content, (f) with respect to Members, you shall fully adhere to the provisions of Section 1.3 hereof, (g) you will not provide an Account or Profile, or request RustyBrick to provide an Account or Profile, to any person who is under eighteen (18) years of age, and (h) in the event that you post to the Service, enable your Members to post to the Service, or otherwise provide to us the PII of any person under the age of thirteen (13), you have duly obtained all required consents to obtain such information, post such information to the Service and provide such information to us for us to use in accordance with the Privacy Policy, including without limitation securing "verifiable parental consent" in connection with all such PII, as that term is defined by the Children's Online Privacy Protection Act of 1998, as amended, and all related regulations ("COPPA"), and you otherwise are and will remain in full compliance of COPPA. 

 

11.       Indemnification. You shall indemnify, defend and hold harmless each of the RustyBrick Parties from all claims, demands, actions, causes of action and/or lawsuits (each, a "Claim" and collectively, "Claims") and all resulting costs, liabilities, losses, expenses, and damages, actual and consequential, direct and indirect, of every kind and nature, including without limitation reasonable attorneys' fees and disbursements, made by any third party due to or arising out of (a) your breach of any of your representations, warranties, covenants or obligations under this Agreement or any of Members under any applicable agreement related to the Service, (b) your negligence or misconduct or that of any of Members, (c) your violation of any law or regulation or that of any of Members, or (d) any Claim brought by a Member of Member against RustyBrick in connection with your use, or such Member's use, of the Service.  You shall immediately provide all applicable RustyBrick Parties with prompt written notice of any Claim or potential Claim of which you become aware.  Upon the assertion or commencement of any Claim against one or more of the RustyBrick Parties by any third party that may give rise to liability of any such RustyBrick Party hereunder, you shall assume the control of the defense of such Claim at your sole expense with counsel reasonably acceptable to each such applicable RustyBrick Party; provided, however, that each such RustyBrick Party may take part in and/or fully assume such defense, in its sole discretion and at its own expense, after you assume the control thereof.  You shall not enter into any settlement of any Claim which any of the RustyBrick Parties believes is adverse to its interests, without receiving the prior written consent of each of the RustyBrick Parties affected by such Claim.  In no event shall any of the RustyBrick Parties be obligated to participate in any settlement which any such party reasonably believes would have an adverse effect on such party’s business interests.     

 

12.       DISCLAIMER OF WARRANTIES. 

 

12.1     YOUR SOLE RISK.  THE SERVICE IS PROVIDED "AS IS", “WHERE IS” AND "AS AVAILABLE", AND YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK.  NONE OF THE RUSTYBRICK PARTIES ASSUMES ANY RESPONSIBILITY FOR YOUR USE OF THE SERVICE INCLUDING WITHOUT LIMITATION ALL CONTENT PROVIDED THROUGH THE SERVICE, AND NONE OF THE RUSTYBRICK PARTIES MAKES ANY PROMISE, GUARANTY, PREDICTION OF SUCCESS OR ANY CLAIM TO SPECIAL EXPERIENCE, INSIGHT, OR EXPERTISE IN ENABLING YOU TO MAKE USE OF THE SERVICE.  NOTHING IN THIS AGREEMENT SHALL CREATE ANY EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION BY ANY OF THE RUSTYBRICK PARTIES.  IN PARTICULAR, EACH OF THE RUSTYBRICK PARTIES EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS THAT (A) YOUR USE OR MEMBERS' USE OF THE SERVICE WILL MEET YOUR EXPECTATIONS, (B) YOUR USE OR MEMBERS' USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERRORS OR OMISSIONS, (C) INFORMATION PROVIDED BY OR OTHERWISE APPEARING THROUGH THE SERVICE WILL BE ACCURATE, RELIABLE, COMPLETE, CURRENT OR BENEFICIAL, (D) DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SERVICE WILL BE CORRECTED OR UPDATED, AND (E) WE ARE IN ANY WAY LIABLE FOR ANY LOSS OR DAMAGE WHATSOEVER THAT MAY DIRECTLY OR INDIRECTLY RESULT FROM YOUR USE OR THE USE BY MEMBERS OF ANY INFORMATION PROVIDED THROUGH THE SERVICE, WHETHER ARISING FROM OUR NEGLIGENCE OR OTHERWISE. ANY SOFTWARE OR WIDGET DOWNLOADED OR OTHERWISE OBTAINED THROUGH YOUR USE OF THE SERVICE IS DONE AT YOUR SOLE DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY AND ALL DAMAGES TO YOUR COMPUTER SYSTEM OR OTHER DEVICES OR YOUR LOSS OF DATA OR ANY OTHER LOSS, WHICH RESULTS FROM THE DOWNLOAD OR OTHER USE OF ANY SUCH SOFTWARE.

12.2   DAMAGES; TRANSACTIONS; NO RESPONSIBILITY. NONE OF THE RUSTYBRICK PARTIES ENDORSES OR IS RESPONSIBLE FOR ANY CONTENT APPEARING THROUGH THE SERVICE, INCLUDING WITHOUT LIMITATION ANY SUBMITTED CONTENT OR OTHER THIRD PARTY CONTENT APPEARING THROUGH THE SERVICE.  NONE OF THE RUSTYBRICK PARTIES IS RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF YOUR INTERACTION OR THE INTERACTION BY MEMBERS WITH ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION ANY TRANSACTION ENGAGED IN BY YOU OR MEMBERS THROUGH THE SERVICE OR IN CONNECTION, DIRECTLY OR INDIRECTLY, WITH YOUR USE OF THE SERVICE OR USE OF THE SERVICE BY MEMBERS.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED THROUGH THE SERVICE SHALL CREATE ANY WARRANTY OR REPRESENTATION BY ANY OF THE RUSTYBRICK PARTIES THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT, AND NONE OF THE RUSTYBRICK PARTIES SHALL HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY TO YOU OR ANY OTHER PERSON FOR ANY LOSS, DAMAGE, OR ADVERSE CONSEQUENCE ALLEGED TO HAVE HAPPENED OR WHICH HAS HAPPENED, DIRECTLY OR INDIRECTLY, IN CONNECTION WITH YOUR USE OF THE SERVICE OR USE OF THE SERVICE BY MEMBERS.  SPECIFICALLY, EACH OF THE RUSTYBRICK PARTIES HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE IN CONNECTION WITH YOUR USE OF THE SERVICE OR USE OF THE SERVICE BY MEMBERS.  FINALLY, WHILE RUSTYBRICK TAKES STEPS CONSISTENT WITH COMMERCIALLY REASONABLE INDUSTRY STANDARDS TO SECURE PII COLLECTED FROM YOU AND FROM MEMBERS FROM LOSS, MISUSE, UNAUTHORIZED ACCESS AND ACCIDENTAL DESTRUCTION WHILE UNDER OUR CONTROL, WE CANNOT GUARANTEE THAT SUCH INFORMATION WILL NOT BE LOST, DISCLOSED OR ACCESSED BY ACCIDENTAL CIRCUMSTANCES OR BY THE UNAUTHORIZED ACTS OF OTHERS.

 

13.       LIMITATION OF LIABILITY.

13.1     LIMITED LOSSES AND DAMAGES.  IN NO EVENT SHALL ANY OF THE RUSTYBRICK PARTIES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICE OR USE OF THE SERVICE BY MEMBERS (INCLUDING WITHOUT LIMITATION ARISING OUT OF ANY CONTENT OBTAINED THROUGH THE SERVICE OR ANY TRANSACTION ENGAGED IN THROUGH, OR OTHERWISE IN CONNECTION WITH, THE SERVICE), WHETHER CAUSED BY OR UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION NEGLIGENCE, LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), LOSS OF GOODWILL OR BUSINESS REPUTATION, LOSS OF DATA, OR ANY OTHER TANGIBLE OR INTANGIBLE LOSS OR DAMAGE.  WITHOUT LIMITING THE FOREGOING, NONE OF THE RUSTYBRICK PARTIES SHALL BE LIABLE FOR ANY LOSS OR DAMAGE WHICH MAY BE INCURRED AS A RESULT OF (A) ANY RELIANCE PLACED BY YOU OR ANY MEMBER ON ANY CONTENT, INCLUDING WITHOUT LIMITATION ANY TECHNICAL, TYPOGRAPHICAL, PHOTOGRAPHIC OR OTHER ERRORS, (B) ANY CHANGES WHICH RUSTYBRICK MAY MAKE TO THE SERVICE, (C) ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICE (OR ANY SPECIFIC FEATURES OF THE SERVICE), (D) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE ANY CONTENT, INCLUDING WITHOUT LIMITATION SUBMITTED CONTENT, (E) YOUR FAILURE TO PROVIDE US WITH (I) IMMEDIATE NOTICE OF ANY BREACH OF THIS AGREEMENT BY YOU, ANY MEMBER OR ANY OTHER THIRD PARTY OF WHICH YOU BECOME AWARE, OR (II) ACCURATE ACCOUNT AND OTHER REQUESTED INFOMRATION, (F) YOUR FAILURE TO KEEP YOUR ACCOUNT INFORMATION SECURE AND CONFIDENTIAL, OR (G) ANY TRANSACTION OR OTHER RELATIONSHIP BETWEEN YOU OR A MEMBER AND ANY THIRD PARTY WHICH OCCURRED IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, USE OF THE SERVICE.

13.2    CAP ON LIABILITY.  IN NO EVENT SHALL ALL OF THE RUSTYBRICK PARTIES' AGGREGATE LIABILITY TO YOU, ALL MEMBERS OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICE EXCEED THE LESSER OF (I) THE CUMULATIVE AMOUNT OF FEES PAID TO RUSTYBRICK BY YOU OVER THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE ARISING OF THE CLAIM ON WHICH SUCH LIABILITY IS BASED, OR (II) ONE THOUSAND DOLLARS ($1,000).

13.3   EXCLUSIONS.  THE ABOVE LIMITATIONS OF LIABILITY OF THE RUSTYBRICK PARTIES IN THIS SECTION 13 SHALL APPLY WHETHER OR NOT ANY RUSTYBRICK PARTY HAS BEEN ADVISED OF, OR SHOULD HAVE BEEN AWARE OF, THE POSSIBILITY OF ANY LIABILITIES, LOSSES OR DAMAGES ARISING IN CONNECTION WITH THE SERVICE.  SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES.  ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN SECTIONS 12 OR 13 HEREOF MAY NOT APPLY TO YOU.

14.       No Endorsement.  RustyBrick is neither affiliated with, nor sponsored or endorsed by, any specific product, service, methodology or person.  The owners of any third party Trademark or copyright appearing through the Service are not sponsors of RustyBrick or the Service and have not endorsed and are not affiliated with RustyBrick or the Service, and RustyBrick is not a sponsor and does not endorse any such third parties or any of their products or services. 

 

15.                   No Agency.  No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created between you or any of your Members and RustyBrick by this Agreement or by your use of the Service or use of the Service by Members.

 

16.       Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York, excluding conflict of laws provisions thereof.  You hereby agree to the personal and exclusive jurisdiction by and venue in the courts located within the County of New York, State of New York, and to receive service of process through certified mail or by other means sanctioned by law, and you and us expressly waive any claim of improper venue and any claim that such courts are an inconvenient forum.

 

17.        Timely Filing of Claims.  YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE, INCLUDING WITHOUT LIMITATION YOUR USE OF THE SERVICE OR USE OF THE SERVICE BY MEMBERS, MUST BE FILED BY YOU PURSUANT TO SECTION 16 ABOVE WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR IS CLAIMED TO HAVE ARISEN. 

 

18.       Notices.  All notices hereunder to us shall be given by certified mail, postage prepaid and return receipt requested, to: RustyBrick, Inc., Attn: CEO, 250 West Nyack Road, Suite 200, West Nyack, NY 10994 with an electronic copy to notices@shulcloud.com, and to Subscriber by electronic mail to the email address listed in your Account.  Notice shall be deemed given three (3) days after the date of such mailing, and in the case of notice by electronic mail, upon the sending of such message.

 

19.       Assignment. You shall not resell or assign your rights, duties or obligations under this Agreement in any manner, and any attempted assignment or delegation of such rights, duties or obligations shall be void and of no force or effect whatsoever.  This Agreement may be freely assigned by RustyBrick, in our sole discretion, to a third party, and such an assignment will inure to the benefit of our successors, assigns and/or licensees.  Without limitation of the foregoing, we may sell, transfer or otherwise share some or all of our assets, including without limitation your PII, with any parent company, subsidiary, joint venture, and an entity under our common control, as well as with a potential acquirer, including without limitation in connection with a merger, reorganization, or sale of assets, or in the event of a bankruptcy.  In each such an event, the non-PII we have collected from you and from Members may be one of the assets transferred.

 

20.       Validity; Section Headings.  If any provision of this Agreement is held to be invalid, illegal, void or unenforceable by a court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, and the application of such provision to other persons or circumstances will be interpreted reasonably to effect the intent of the parties. Section headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.

 

21.       No Waiver.  Our failure to act with respect to a breach by you or others does not waive our right to act with respect to a subsequent or similar breach or subsequent or similar breaches.  If RustyBrick does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which RustyBrick has the benefit of under any applicable law or regulation), such action or inaction shall not be taken to be a formal waiver of RustyBrick’s rights, and all such rights or remedies shall still be available to RustyBrick.

 

22.       Survival.  The provisions of this Agreement shall survive termination or expiration to the extent necessary to carry out the obligations of you and RustyBrick.

 

23.       Contact Us. If you have any questions or concerns regarding the Service, please contact us by e-mail at questions@shulcloud.com or write to us at RustyBrick, Inc., Attn: CEO, 250 West Nyack Road, Suite 200, West Nyack, NY 10994 

 

I have read and agree to these terms and conditions.