FireBall Enterprises, Inc.

SITE ACCESS AND PURCHASE AGREEMENT

This Site Access and Purchase Agreement (the “Agreement”) sets forth the terms of the relationship between you (“You”), the user of the www.Fireball.com site (the “Site”), and Fireball Enterprises, Inc., a New York corporation (“Fireball”), respecting, among other things, access to and use of the Site. (The terms You, Your, and Yours refer to the user, customer, bidder or purchaser using the Site.)

This Agreement may be modified or amended from time to time by agreement between Fireball and You.

1. Amendments and Changes

a. Changes to Site. Fireball reserves the right at any time and from time to time to change or discontinue any aspect or feature of the Site, including but not limited to services, products, content, hours of availability, and equipment needed for access or use.

b. Changes to Agreement Terms. Fireball reserves the right at any time and from time to time to change, modify, add or delete any of the terms or provisions applicable to Your use of the Site, or any part thereof, or to impose new conditions, including, but not limited to adding or adjusting fees and charges for use, and changing or modifying this Agreement. Such changes, modifications, additions or deletions (“Changes”) will be effective immediately upon notice thereof, which may be given by any means reasonably intended to inform You of the Changes, which may include, but not be limited to, posting announcements on the Site, sending electronic or conventional mail to You, or such other means by which You may obtain notice thereof. YOUR CONTINUED USE OF THE SITE FOLLOWING FIREBALL’S POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES. IF YOU DO NOT AGREE TO ANY SUCH CHANGES TO THIS AGREEMENT, IMMEDIATELY DISCONTINUE YOUR USE OF THE SITE.

2. Your Membership

a. The Site. Fireball operates the Site, an online auction site that will enable Members to view and purchase products and services. Each product available on the Site (each, a “Product”) will be offered for a defined and limited period of time, in each case determined by Fireball, and may be sold to the Member offering the highest purchase price during that limited selling period. In addition, Fireball may, from time to time, make available to Members opportunities to purchase a Product either in multiples of more than one (1), or at the highest purchase price they proposed even if that purchase price was not the highest proposed during the selling period.

b. Registration as a Fireball Member Required. Only Fireball Members may participate in the activities and opportunities offered by the Site. In order to become a Member, You must first accept this Agreement and agree to bound by and subject to all of the terms and conditions of this Agreement. No minor may be a Member, and no Member may permit a minor to use their membership. Each Member must provide Fireball with Your name, address, telephone number, email address, and such other identification information as Fireball may see fit to require or request from time to time.

c. Age Minimum. A “Minor” is a person under the age of 21, if such person would access the Site from AL, MS, NE, WY or any other state in which the age of majority is greater than 18), or, a person under the age of 18, if such person would access the Site from anywhere else. No Minor may become a Fireball Member, use the Site or authorize or engage in any bidding, auction or transaction on the Site under any circumstances.

d. Your User Name and Password. As part of the registration process, You shall choose Your own user name and password. You shall maintain the confidentiality of that password and restrict access to Your computer, and You will have sole responsibility for any activities on the Site under Your user name and password.

e. One (1) Account per Member. A Member shall maintain only one (1) account with Fireball. The privilege to use the Site is personal to each Member, and may not be transferred to any other person or entity, for any purpose at any time.

f. Your User Name. You may not use on the Site an offensive, profane or otherwise inappropriate user name. Fireball reserves the right at any time to erase or remove from the Site, or change, any user name or user-generated data which Fireball deems, in its sole opinion, to be offensive, profane or otherwise inappropriate.

g. Cookies Must Be Enabled. In order to participate in the Site, Your browser cookies must be enabled each time You log onto the Site. Cookies are small files stored on Your hard drive that store login information. Your browser may be set up to accept cookies by default, but if Your settings have changed, or Your browser continually returns to the login page after You submit Your login information, You may need to enable cookies.

3. Basic Usage Rules: Your Use of the Site.

a. Our Content. The Site may contain copyrighted material, trademarks and other intellectual property and proprietary information, which may include, but not be limited to, text, software, photos, video, graphics, music and sound, and the entire contents of the Site will be protected by copyright under the United States copyright laws. You shall not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of such content, in whole or in part. You may download such material for Your personal use only. Except as otherwise expressly permitted under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material is permitted without the express permission of Fireball and, if a different person or entity, the copyright owner. In the event of any permitted copying, redistribution or publication of copyrighted material, You shall neither make nor permit to be made by others any changes in or deletion of author attribution, trademark legend or copyright notice. You shall not acquire any ownership rights by downloading copyrighted material.

b. Equipment. You shall have sole responsibility for obtaining and maintaining all telephone, computer hardware, software and other equipment needed for access to and use of the Site and all charges related thereto.

c. Zero Tolerance on Fraud. FIREBALL HAS ZERO TOLERANCE FOR ONLINE FRAUD. Each time You log in to the Site, Your IP address will be recorded. This information may be used against fraudulent bidders. Any acts of online fraud or suspicions thereof should be immediately reported to Fireball. Fireball will notify and assist the appropriate law enforcement agencies in any case in which there is suspicion of fraudulent use of the Site. Fireball will terminate and ban the user on the first offense. Fireball may also maintain and enforce a blacklist to chronicle fraudulent users.

d. Compliance with Laws; Fraud. The Site may be used only for lawful purposes and in a lawful manner. You shall comply with all applicable laws, statutes and regulations regarding use of the Site, including but not limited to Your participation in bidding and purchasing Products. You may not register under a false name, or use an invalid or unauthorized credit card. You may not make bids under a false name, impersonate any other user, or use another participants password(s). Such fraudulent conduct may violate Federal or State laws. Fireball intends to report suspicious or fraudulent conduct to law enforcement agencies, and will cooperate to ensure that violators are prosecuted to the fullest extent of the law.

e. Shill Bidding. You shall not place bids, or cause bids to be placed, on any Product for the purpose of artificially increasing or otherwise manipulating the bidding process on the Site, or of otherwise influencing user behavior on the Site.

4. Privacy, Monitoring and Disclosure, Breach

a. Your Privacy. Fireball will take precautions to protect Member’s information. When Fireball’s registration/order form requests sensitive information (such as credit card numbers), that information will be protected as Fireball may deem appropriate from time to time, in keeping with general practices in the industry. If Fireball decides to change its privacy policy, it will post those changes on the Site so that members will be aware of what information Fireball collects, how it will be used, and under what circumstances and to whom Fireball may disclose it. If at any point Fireball decides to use personal information in a manner different from that stated at the time it was collected, Fireball will so notify members. Except as authorized herein and unless otherwise authorized or consented to by Fireball, You shall not to use any information regarding other participants which may be accessible on the Site or disclosed to You by Fireball, except to enter into and complete transactions. You shall not use any such information for purposes of solicitation, advertising, unsolicited e-mail or spamming, harassment, invasion of privacy, otherwise objectionable conduct or otherwise in a manner inconsistent with Fireball’s privacy policy.

b. Monitoring and Investigation. As permitted by applicable law and consistent with our privacy policy, Fireball reserves the right, but assumes no obligation, to monitor and investigate any activity on or associated with the Site. Fireball may also monitor and investigate any reported violation of its policies or complaints, and take any action that it deems appropriate. Such action may include, but will not be limited to, issuing a warning, suspension or termination of service and denying access to the Site.

c. Disclosure of Information. As permitted by applicable law, Fireball reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties. In order to cooperate with information requests, to protect Fireball’s systems and customers, to allow users to resolve disputes, or to ensure the integrity and operation of Fireball’s business and systems or other purposes deemed reasonable by Fireball, Fireball may access and disclose any information it considers necessary or appropriate, including, without limitation, user contact details, IP addressing and traffic information, usage history and posted content.

5. Certain Rights of Fireball

a. Auction Glitches. Fireball will offer 100% risk-free auctions, except when a technical glitch prevents that from happening. In such a case, Fireball may stop, restart or cancel any auction at any time, whether before, during or after the auction. Any and all funds received during a glitch auction will be returned by Fireball to the customer, if no merchandise has been shipped. Bidders are advised to print a copy or manually note the auction number of each auction. In the event that an auction in which You were involved was affected by a glitch, your failure to record or provide the auction number may render Fireball unable to investigate the alleged glitch.

b. Breach. Without limiting its other remedies, Fireball may issue a warning, temporarily suspend, indefinitely suspend or terminate Your access to the Site, and refuse to permit access to or use of the Site to You (a) if You breach this Agreement; (b) if Fireball is unable to verify or authenticate any information You provide to Fireball; or (c) if Fireball believes that Your actions may cause legal liability for You, other Site users, or Fireball.

c. Termination. Fireball may terminate this Agreement or Your access to the Site at any time in the event of any conduct by You which Fireball, in its sole discretion, considers to be unacceptable.

6. Bidding Terms

a. Your Bid or Offer to Buy Is Your Agreement. Your bid upon, or request or offer to buy, any Product is a legal offer to buy the Product at the price and on the terms proposed. Once Fireball accepts Your offer, You shall be obligated to complete the transaction as accepted by Fireball. Accordingly, when You bid on a Product on the Site, You propose a legally binding commitment which, upon acceptance by Fireball, constitutes a binding contract in which You are committed to purchase the Product at the proposed bid price and on the proposed terms. Failure to perform such contract in accordance with the tenor of the contract manner will constitute your breach of the contract, expose you to a legal claim, and cause Fireball to terminate Your Fireball membership.

b. Listing Page. Each Product has a Auction Page, setting forth the Product’s description and additional Checkout Terms, if applicable. You will be responsible for reading and understanding the Auction Page, and Your submission of a bid to buy a Product will constitute Your acknowledgment that You have read and understand the Auction Page and Checkout Terms.

c. Bid Increment Rules

i. Whole Dollar Increments. Each proposed purchase price in each bid (a Bid Amount) to buy a Product must be in whole dollar amounts. Any Bid amount not placed in whole dollar increments will be invalid and not accepted, or may, at Fireball’s election, be deemed a bid at the next highest whole dollar amount (for example, a bid of $181.81 could be deemed for all purposes equivalent to a bid of $182.00).

ii. Minimum Bid Increase. Your Bid Amount must exceed the current highest bid by at least the Minimum Bid Increase. The Minimum Bid Increase depends on the current highest Bid Amount, and will be defined from time to time by Fireball.

iii. Automatic Bid Increments. For Your convenience, Fireball automatically sets each of Your next Bid Amounts by adding the applicable Minimum Bid Increase to the current Bid Amount. YOU MAY ALSO SET YOUR DESIRED BID AMOUNT MANUALLY, WITHOUT THE AID OF THE Fireball AUTOMATIC BID INCREASE, IF GREATER THAN THE APPLICABLE MINIMUM BID AMOUNT INCREASE.

d. No Bid Shilling or Fraud. Bid shilling occurs when someone bids on a Product for the sole purpose of driving up the price and is prohibited. Any evidence of bid shilling on a Product is a breach of this Agreement, warrants immediate termination of membership, and will cause a review of the auction in which it occurred. Fireball may take such steps as it may deem appropriate in such connection, including but not limited to adjusting the winning price so as to correct any result of such conduct.

e.  Retracting Your Bid. No submitted bid may be retracted, except that Fireball may, in its discretion, permit retraction in a particular case as a result of an obvious typographical error. For purposes of clarification, a bid placed on another, similar Product, changing Your mind, or inability to pay for the Product is not grounds to retract a bid or to cancel Your agreement to purchase a Product. To retract a confirmed bid, You must contact Customer Service with Your request and include the Auction number and a valid explanation.

f. Submission of the Highest Bid and Your Payment Obligation. When You have submitted the highest Bid Amount during the selling period of a Product, You will receive an e-mail notifying You that You have submitted the highest Bid Amount. You will have seven (7) days thereafter to pay for Your Product(s) at that highest Bid Amount. You should keep a record of all of Your Bid Amounts. No extensions of this seven (7) day period will be given.

7. Bidding Tools. Fireball makes available tools for reviewing and purchasing Products through the Site. You may use such tools at your own risk. Your use of any of such tools constitutes Your acknowledgment that You have read and understand all of the rules and instructions for such tools.

a. Fireball Watch List. You may elect to use Fireball’s Watch list feature to track Products You are interested in, but not yet ready to bid on. You may also bid on Products on Your Watch List directly from Your Watch List.

b. Autobid System. Our Autobid System will automatically place bids on Your behalf on Products up to Your maximum Bid Amount. Your election to use the Autobid System is Your offer to purchase the applicable Product at the highest Bid Amount designated by You, and constitutes a legal contract between You and Fireball. If Your highest bid amount is the winning bid, You shall comply with Your obligations under that contract to buy the Product from Fireball. An Autobid placed on a Product or Bids that have already been placed by the Autobid System may not be cancelled.

c. Silver Medal Offer Product.

i. Description. Fireball may provide You with an opportunity to purchase a Product through the Fireball Silver Medal Offer program. A Silver Medal Offer is an opportunity to purchase a Product for which You submitted a bid that was not the highest. The purchase price for a Silver Medal Offer is the highest price You bid for the Product. Silver Medal Offers may be made available when there are more than one (1) Products available for sale. Silver Medal Offers will only be available to qualified Members to whom such offers are extended.

ii. Notice to You. If a Product is subject to a Silver Medal Offer, You will receive an email notification after the selling period ends that You have a Silver Medal Offer to buy the Product. Silver Medal Offer Products will automatically be placed into Your account, with a distinct listing number (e.g., SMO_123456).

iii. Payment Terms. Members who receive a Silver Medal Offer will have seven (7) days to pay for all Silver Medal Offers after receiving an email notification of the offer.

iv. No Obligation. You are not obligated to purchase any Silver Medal Offers. If You choose not to purchase such Products, You may contact customer service for removal or allow them to re-list without penalty to You.

d. PowerBuy.

i. Description. Fireball may provide You with an opportunity to purchase multiples of the same Products through the Fireball PowerBuy program. The PowerBuy (PB) program provides You with an opportunity to purchase a Product for which You submitted the highest bid in multiple quantities for the highest bid price. PB opportunities will only be available to qualified Members to whom such offers are extended.

ii. Notice to You. If a Product is subject to the PB program, You will be able to select PowerBuy for a product upon checkout. PB opportunities will display in Your account with a distinct listing number (e.g., PB_123456).

iii. Payment Terms. You will have seven (7) days to pay for any PB offer.

iv. No Obligation. You are not obligated to purchase any Products under any PB offers. If You choose not to purchase these Products, You can contact customer service for removal or allow them to re-list without penalty to You.

e. Reserve Price Auctions.

i. Description. A Reserve Price Auction is similar to a typical Fireball Auction without a reserve price, except that a minimum Reserve Price has been set. Once the minimum Reserve Price is met, the highest bidder will win the purchase of the item once the auction closes. Each Reserve Price Auction will show an indicator when the Reserve Price is Not Met. The Reserve Price will not be revealed. If Fireball has set a Reserve Price for a particular auction and the Reserve Price is not met, Fireball will not be obligated to sell the item.

ii. Notice to You. If a Reserve Price has been met on an Auction, the highest bidder will win the purchase of the item once the auction closes. Such winner will receive an email notification after the selling period ends that You have won the Reserve Price Product. Reserve Price Products will automatically be placed into Your account.

8. Payment

a. General Payment Policies.

i.  Payment in U.S. Currency Only. All payments for Products must be made in United States currency.

ii. All Purchases Will Be Subject to Confirmation. All of Your purchases and amounts owed for those purchases will be presented to You on one (1) or more notices that will be emailed to You and stored in Your account for 90 days from the purchasing date. Fireball will use commercially reasonable efforts to post and make available to You Your invoices no later than twenty-four (24) hours after Fireball accepts Your payment.

iii. Payment Due Within Seven (7) Days. Payment for any Product is due promptly, but no later than seven (7) days after Fireball accepts Your offer to buy a Product. Any payment not received within 7 days of such time as Fireball accepts Your offer to buy a Product will be referred for collection.

iv. Your Transactions and Obligations. By entering into this Agreement and bidding on a product, You agree to complete the transaction. In such a case, You will be held accountable if You do not fulfill Your obligation. If payment is not made, bidding privileges may be subject to temporary or permanent suspension, and Fireball. maintains the right to cancel outgoing Products in its own discretion. Multiple non-pays of auctions won, unresolved chargeback issues, an undeliverable address, or the refusal to pay applicable fees will subject You to suspension or termination. You may also be subject to suspension or termination if You have more than 10 unpaid items in Your account, or if the total amount of auctions You won exceeds $500.00.

v. Shipping Not Refundable. Shipping costs and charges are not refundable, except in such situations where the Product is damaged, or does not substantially conform to the Auction Page description of such Product.

b. Restocking Fees.

i. A 15% re-stocking fee will apply to any Product which Fireball determines in its sole discretion conformed to the Auction Page description, but was returned, even if You received a Return Authorization Number (“RMA”) from Fireball.

ii. Any package refused delivery by Member, or returned as undeliverable, will be assessed a 25% restocking fee.

c. Fireball Rights If Payment Not Received In Full. Your selection of a payment method will act as your representation and warranty to Fireball that You will be able to make full and immediate payment. In the event that Your chosen payment method does not enable You to make full and immediate payment for any reason, including without limitation insufficient funds or credit decline, Fireball may in its sole and absolute discretion cancel Your purchase. In such case, Fireball may (but shall not be required) in it sole and absolute discretion to designate the next highest bidder meeting the applicable minimum bid or reserve requirements as the winning bidder. At the sole and exclusive discretion of Fireball, but without any obligation, Fireball may elect to accept alternate methods of payment.

d. Payment Methods.

i. Accepted Payment Forms. Fireball currently accepts:

(1) Visa;

(2) MasterCard;

(3) American Express;

(4) Discover;

(5) Money orders (domestic), travelers checks, bank checks and cashier’s checks;

(6) Certain third party payment services, including but not limited to PayPal.

ii. Special Rules for Money Orders and Bank or Cashier’s Checks. No payment in the form of money order or bank or cashier’s check will be accepted, unless it includes at least all of the following:

(1) Applicable sales tax for Products shipped to New York (sales tax percentage will depend on the County), in addition to all other purchase price(s), charges and fees.

(2) The purchased Products Auction number (found on the Auction Page)

(3) Any promotional coupons you may have applicable to Your purchase.

(4) Payments made payable to: Fireball Enterprises, Inc.

(5) All such payment forms must have a physical address (that is, no post office boxes).

(6) Check payments of $1,000 or more will be placed on hold for 10 business days, subject to the clearing of each such check.

iii. Third Parties. Any payments made to Fireball through any third party payment service, such as PayPal, any credit card issuer, or any other party, will be an agreement between You and the third party. FIREBALL WILL HAVE NO ROLE OR RESPONSIBILITY IN ANY RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PAYMENT SERVICE. ANY INFORMATION ABOUT THE SERVICES OF A THIRD PARTY PAYMENT SERVICE PROVIDED ON THIS SITE, OR OTHERWISE PROVIDED BY FIREBALL, IS FOR CONVENIENCE ONLY. FIREBALL MAKES NO WARRANTY ABOUT THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION.

9. Sales Tax.

a. Sales Tax Requirements. Companies selling over the Internet are subject to the same sales tax collection requirements as any other retailers.

b. New York Purchases. Any Product purchased on Fireball being shipped to New York will be charged sales tax on the transaction. Fireball will accept New York resale certificates only if submitted before the transaction closes.

c. Your Obligations. Fireball’s sales tax collections procedures do not constitute a promise that You have no other sales or use tax liabilities as a result of Your purchase of Products through Fireball. You are solely responsible for reporting and remitting any sales or use tax You may owe under laws applicable to You. You also agree that Fireball is not obligated to determine whether sales or use taxes apply and is not responsible to collect, remit or report any sales or use taxes arising from any transaction.

10. Shipping & Delivery.

a. General Shipping Policies.

i. Available Shippers.

(1) Domestic. All domestic orders (Products shipped within the United States) will be shipped by FedEx.

(2) International. All international orders (Products shipped outside of the United States) will be shipped by FedEx International.

ii. Time to Ship. Fireball will not ship Products or begin to provide services until full payment for such Products or services has been received. Fireball will deliver Products to the shipper within five (5) business days of receiving payment for such Products. During peak season, Your order may take longer to ship.

iii. Priority Shipping. We will endeavor to provide You the opportunity to elect priority shipping, subject to additional charges. Priority shipping relates only to the services provided by a shipper and does not relate in any way to Fireball’s time to deliver the Product with the shipper. Fireball will not be responsible for delays in shipping. Fireball makes no warranty, express or implied, about the ability of any shipping company to deliver any package in a specified amount of time. Any delays in shipping are the responsibility of the shipping company.

b. Shipping Charges.  Customers will bear and pay the shipper’s ordinary and customary charges for all such shipments, with such insurance and other features as Fireball may deem necessary or appropriate.

c. Customs. You are solely responsible for all customs fees and duties on Your package. Please consult Your local Customs Office for duties, regulations, and restrictions.

d. Charges for Refused and Undeliverable Packages.

i. Restocking Fee. Any package refused by the customer or returned to Fireball as undeliverable will be assessed a 15% restocking fee.

e. Tracking Your Shipment. The Tracking Number will be emailed to you once Your order has been shipped. For questions on the status of Your FedEx package, please call 1-800-GO-FEDEX (1-800-463-3339).

f. Estimated Delivery Date. Once Fireball delivers Your package to a shipper, the shipper provides an estimated delivery date based on the shipping method You selected and other market and environmental factors.

g. Lost Packages. If You do not receive Your package, please file a claim with Fireball promptly, and in any event within 48 hours, from the estimated delivery date of Your package. Fireball will not be liable under any circumstance for lost or stolen packages; packages containing missing products; or vandalized packages; if the customer does not contact fireball within such 48 hours from the estimated delivery date of Your package. Please forward all claims issues to: customerservice@Fireball.com.

11. Limited Warranty. Fireball hereby disclaims all warranties, express and implied, of every kind and nature on any Product, service or the Site, except as may be set forth in this Agreement, including the Fireball Limited Warranty.

12. No Warranties. THE SITE IS PROVIDED ON AN “AS IS” BASIS, AND CUSTOMERS USE THE SITE AT THEIR OWN RISK. FIREBALL MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SITE OR ITS USE, INCLUDING WITHOUT LIMITATION:

a. THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT;

b. THAT THE SITE WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, AND WILL SECURE OR OPERATE WITHOUT ERROR;

c. ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF FIREBALL.

d. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, FIREBALL DISCLAIMS ANY AND ALL SUCH WARRANTIES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, WHICH YOU MAY OBTAIN FROM FIREBALL OR THROUGH THE USE OF SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

13. Disclaimers.

a. YOUR USE OF THE SITE IS AT YOUR SOLE RISK, AND FIREBALL WILL HAVE NO LIABILITY OR OBLIGATION TO YOU RESPECTING ANY DAMAGES OR INJURY YOU MAY SUFFER OR INCUR AS A RESULT OF 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 RECORDS, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER BASIS. YOU SPECIFICALLY ACKNOWLEDGE THAT FIREBALL IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER MEMBERS, SUBSCRIBERS OR THIRD-PARTIES, AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

b. IN NO EVENT WILL FIREBALL BE LIABLE FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, AND CONSEQUENTIAL OR PUNITIVE DAMAGES, OR LOST PROFITS ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SITE.

c. IN ADDITION TO THE TERMS SET FORTH ABOVE NEITHER FIREBALL NOR ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS 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 ON THE SITE, OR FOR ANY DELAY OR INTERRUPTION IN THE TRANSMISSION THEREOF TO THE USER, OR FOR ANY CLAIMS OR LOSSES ARISING THEREFROM OR OCCASIONED THEREBY.

.

d. OTHER THAN AS SET FORTH IN THE LIMITED WARRANTY, FIREBALL WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE AND CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, PRODUCTS, SERVICES AND THE SITE, THE INABILITY TO USE PRODUCTS, SERVICES AND THE SITE OR THOSE RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES WHETHER SUCH DAMAGES ARISE UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.

e. YOU SHALL DEFEND, INDEMNIFY AND HOLD FIREBALL AND ITS SUBSIDIARIES, PARENTS, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES HARMLESS FROM, AGAINST AND WITH RESPECT TO ANY AND ALL CLAIMS, LOSSES, LIABILITIES, COSTS AND EXPENSES (INCLUDING BUT NOT LIMITED TO FEES AND EXPENSES OF COUNSEL) ARISING OUT OF OR IN CONNECTION WITH (A) YOUR BREACH OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY DOCUMENTS INCORPORATED BY REFERENCE; (B) YOUR VIOLATION OF ANY STATE, FEDERAL, LOCAL, OR FOREIGN LAWS, CODES OR REGULATIONS; AND/OR (C) YOUR VIOLATION OF ANY THIRD PARTY’S RIGHTS, INCLUDING, BUT NOT LIMITED TO, INFRINGEMENT OF ANY COPYRIGHT, VIOLATION OF ANY PROPRIETARY RIGHT AND INVASION OF ANY PRIVACY RIGHTS. THIS OBLIGATION WILL SURVIVE TERMINATION OF THIS AGREEMENT.

14. Intellectual Property.

a. Trademarks. Fireball’s names, logos and tag lines are trademarks of Fireball, and its affiliates. All rights are hereby expressly reserved. All other trademarks appearing on the Site are the property of their respective owners. This Agreement does not constitute a license to use any such trademarks.

b. Copyrights. Fireball respects the rights of all copyright holders, and in this regard, Fireball has adopted and implemented a policy that provides for the termination in appropriate circumstances of subscribers and account holders who infringe the rights of copyright holders. If You believe that Your work has been copied in a way that constitutes copyright infringement, please provide Fireball with the following information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. §512:

i. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

ii.  Identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;

iii. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;

iv. Information reasonably sufficient to permit us to contact the complaining party;

v. A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

vi. A statement that the information in the notification is accurate, and under penalty of perjury, that You are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

15. Applicable Law and Dispute Resolution

a. Governing Law. Any actions arising out of, relating to or in connection with the Site or the business of Fireball will be governed by, and construed and enforced in accordance with, the laws of the State of New York, without reference to principles of conflict of laws. You hereby consent to the jurisdiction and venue of courts located in New York County, New York, New York in connection with resolution of any dispute or disagreement between You and Fireball.

b. Arbitration. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL, AT THE ELECTION OF FIREBALL, BE RESOLVED BY BINDING ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. IN THE EVENT THAT FIREBALL ELECTS TO ARBITRATE THE DISPUTE, SUCH DISPUTE SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND SHALL NOT BE CONSOLIDATED IN ANY ARBITRATION WITH ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY. THE ARBITRATION WILL BE CONDUCTED IN NEW YORK, NEW YORK, AND JUDGMENT ON THE ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION IN THE MATTER. FIREBALL MAY SEEK ANY INTERIM OR PRELIMINARY RELIEF FROM A COURT OF COMPETENT JURISDICTION, IF FIREBALL BELIEVES IT TO BE NECESSARY OR DESIRABLE TO PROTECT RIGHTS OR PROPERTY PENDING THE COMPLETION OF SUCH ARBITRATION. EACH OF FIREBALL AND YOU HEREBY IRREVOCABLY AND UNCONDITIONALLY CONSENT AND SUBMIT TO THE JURISDICTION OF SUCH COURTS OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SITE, OR ANY BUSINESS CONDUCTED BY FIREBALL AND YOU.

16. General Provisions

a. Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, claims, representations and understandings the parties may have in connection herewith.

b. No Agency; Third-Party Beneficiary. Fireball is not Your agent, fiduciary, trustee or other representative. Nothing in this Agreement is intended or shall be construed or interpreted to give to any person not a party hereto any right, remedy or claim under or in respect to this Agreement. There are no third party beneficiaries to this Agreement.

c. Severability. If any provision of this Agreement is deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severed from this Agreement as if it had never been contained herein, and shall not affect the validity or enforceability of any other provisions of this Agreement.

d. No Waiver. Fireball’s failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of Fireball’s right subsequently to enforce such provision or any other provisions of this Agreement.

e. Headings. The section headings used herein are for convenience only,. and shall not be or be deemed to govern or control the contents of the sections to which they refer.