TERMS OF USE 1. Definitions. "TimeByDesign.com" is the interactive online service operated by Time By Design, Inc. ("Time By Design") on the World Wide Web of the Internet that provides innovative ways to tell time, including cyberclocks, to customers ("Customers") accessing TimeByDesign.com online. Customers include recipients of cyberclock "gifts" purchased by third parties for the recipient, but downloaded or otherwise redeemed by recipient on the TimebyDesign.com Web site. The Time By Design products and services include content and transaction capabilities provided by Time By Design, its affiliates, and other third parties. 2. General. (A) This Agreement incorporates by reference other provisions located on the TimeByDesign.com Web Site. By using TimeByDesign.com (other than to read this Agreement for the first time), Customer agrees to comply with all of the terms and conditions hereof. The right to use TimeByDesign.com is personal to Customer and is not transferable to any other person or entity. Customer shall be responsible for protecting the confidentiality of Customer's password(s), if any. (B) Time by Design shall have the right at any time to change or discontinue any aspect or feature of TimeByDesign.com, including, but not limited to, content, hours of availability and equipment needed for access or use. 3. Changed Terms. Time By Design shall have the right, at any time, to change or modify the terms and conditions applicable to Customer's use of TimeByDesign.com, or any part thereof, or to impose new conditions, including, but not limited to, adding fees and charges for use. Such changes, modifications, additions or deletions shall be effective immediately upon notice thereof, which may be given by means including, but not limited to, posting on TimeByDesign.com, or by electronic or conventional mail, or by any other means by which Customer obtains notice thereof. Any use of TimeByDesign.com by Customer after such notice shall be deemed to constitute acceptance by Customer of such changes, modifications or additions 4. Equipment. Customer shall be solely responsible for maintaining all telephone, computer hardware and other equipment needed for access to and use of TimeByDesign.com and all charges related thereto. 5. Customer Conduct. (A) Customer shall use TimeByDesign.com for lawful purposes only. (B) TimeByDesign.com contains copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video, graphics, music and sound, and the entire contents of TimeByDesign.com are copyrighted as a collective work under the United States copyright laws. Cyberclock software is protected by U.S. copyright registration. Time By Design further owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. Customer may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the content of TimeByDesign.com, in whole or in part. Customer may download copyrighted material, including "gift" cyberclock software, for Customer's personal use only. Except as otherwise expressly permitted under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material will be permitted without the express permission of Time By Design and the copyright owner. In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made. Customer acknowledges that it does not acquire any ownership rights by downloading copyrighted material. (C) The foregoing provisions of Section 5 are for the benefit of Time By Design, its subsidiaries, affiliates and its third party content providers and licensors and each shall have the right to assert and enforce such provisions directly or on its own behalf. Violations of the foregoing may result in the early termination of the Service. 6. DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY. (A) CUSTOMER EXPRESSLY AGREES THAT USE OF TIMEBYDESIGN.COM IS AT CUSTOMER'S SOLE RISK. NEITHER TIME BY DESIGN, ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT TIMEBYDESIGN.COM WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF TIMEBYDESIGN.COM, OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE, OR MERCHANDISE PROVIDED THROUGH, OR DOWNLOADED FROM, TIMEBYDESIGN.COM. TIME BY DESIGN DOES NOT WARRANT OR GUARANTEE THE SERVICES OR PRODUCTS, SUCH AS THE QUALITY OF ANY CYBERCLOCK DOWNLOADED, PROVIDED BY THE TIMEBYDESIGN.COM ONLINE SERVICE, AND TIME BY DESIGN DISCLAIMS ANY AND ALL LIABILITY WITH REGARD TO THE SAME. (B) TIMEBYDESIGN.COM IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES THAT ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT. (C) THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. CUSTOMER SPECIFICALLY ACKNOWLEDGES THAT TIME BY DESIGN IS NOT LIABLE FOR THE ILLEGAL CONDUCT OF OTHER USERS OR THIRD-PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH CUSTOMER. (D) IN NO EVENT WILL TIME BY DESIGN, OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING TIMEBYDESIGN.COM OR THE TIMEBYDESIGN.COM SOFTWARE, INCLUDING CYBERCLOCKS, BE LIABLE FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE TIMEBYDESIGN.COM. CUSTOMER HEREBY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL CONTENT ON TIMEBYDESIGN.COM. (E) IN ADDITION TO THE TERMS SET FORTH ABOVE NEITHER, TIME BY DESIGN, NOR ITS AFFILIATES, INFORMATION PROVIDERS OR CONTENT PARTNERS SHALL BE LIABLE REGARDLESS OF THE CAUSE OR DURATION, FOR ANY ERRORS, INACCURACIES, OMISSIONS, OR OTHER DEFECTS IN, OR UNTIMELINESS OR UNAUTHENTICITY OF, THE INFORMATION CONTAINED WITHIN TIMEBYDESIGN.COM, OR FOR ANY DELAY OR INTERRUPTION IN THE TRANSMISSION THEREOF TO THE CUSTOMER, OR FOR ANY CLAIMS OR LOSSES ARISING THEREFROM OR OCCASIONED THEREBY. NONE OF THE FOREGOING PARTIES SHALL BE LIABLE FOR ANY THIRD-PARTY CLAIMS OR LOSSES OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, PUNITIVE OR CONSEQUENTIAL DAMAGES. (F) THESE LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY OR TORT, AND SHALL SURVIVE FAILURE OF AN EXCLUSIVE REMEDY. 7. Indemnification. Customer agrees to defend, indemnify and hold harmless Time By Design, its affiliates and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys' fees, arising out of the use of TimeByDesign.com by Customer or any other use of the TimeByDesign.com service by Customer. 8. Termination. Either Time By Design or Customer may terminate this Agreement at any time. Without limiting the foregoing, Time By Design shall have the right to immediately terminate any passwords or accounts of Customer in the event of any conduct by Customer which Time By Design, in its sole discretion, considers to be unacceptable, or in the event of any breach by Customer of this Agreement. The provisions of Sections 5(B), 6, 7, 8, 9, 10 and 11 shall survive termination of this Agreement. 9. Trademarks. Time By Design and TimeByDesign.com and each of their logos are trademarks of Time By Design, Inc.. All rights reserved. All other trademarks appearing on Time By Design are the property of their respective owners. 10. Third Party Content. From time to time, Time By Design may act as a distributor (and not a publisher) of content supplied by third parties and Customers. Accordingly, Time By Design has no more editorial control over such content than does a public library, bookstore, or newsstand. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information providers, Customers or any other user of TimeByDesign.com, are those of the respective author(s) or distributor(s) and not of Time By Design. Neither Time By Design nor any third-party provider of information guarantees the accuracy, completeness, or usefulness of any content, nor its merchantability or fitness for any particular purpose. (Refer to Section 6 above for the complete provisions governing limitation of liabilities and disclaimers of warranty.) In any such instances, the content available through TimeByDesign.com represents the opinions and judgments of the respective information provider, Customer, or other user not under contract with Time By Design. Time By Design neither endorses nor is responsible for the accuracy or reliability of any opinion, advice or statement made on TimeByDesign.com by anyone other than authorized Time By Design employee spokespersons while acting in their official capacities. Under no circumstances will Time By Design be liable for any loss or damage caused by an Customer's reliance on information obtained through TimeByDesign.com. It is the responsibility of Customer to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other content available through TimeByDesign.com. 11. Miscellaneous. This Agreement and any operating rules for TimeByDesign.com established by Time By Design constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter. This Agreement shall be construed in accordance with the laws of the State of Massachusetts, without regard to its conflict of laws rules. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import. Any cause of action Customer may have with respect to use of the TimeByDesign.com service must be commenced within one (1) year after the claim or cause of action arises. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent possible so as to effect the intent of the Agreement, and the remainder of this Agreement shall continue in full force and effect.