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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 Amerisilver, Inc., a New York corporation (“Amerisilver”), respecting, among other things, access to and use of the Site. (The terms You, Your, and Yours refer to the user, customer or purchaser using the Site.)
This Agreement may be modified or amended from time to time by agreement between Amerisilver and You.
Your use of the Site and Your purchasing of products and participation in other opportunities offered by the Site will constitute Your acceptance of and agreement with the terms of the Agreement.
1. Amendments and Changes
a. Changes to Site. Amerisilver 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. Amerisilver 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 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 AMERISILVER’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. Amerisilver operates the Site, an online store site that will enable Members to view and purchase products and services.
b. 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 Amerisilver Member, use the Site or authorize or engage in any transaction on the Site under any circumstances.
c. 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.
d. Your User Name. You may not use on the Site an offensive, profane or otherwise inappropriate user name. Amerisilver reserves the right at any time to erase or remove from the Site, or change, any user name or user-generated data which Amerisilver deems, in its sole opinion, to be offensive, profane or otherwise inappropriate.
e. 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 Amerisilver 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. 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 purchasing Products. You may not register under a false name, or use an invalid or unauthorized credit card. You may not make purchases under a false name, impersonate any other user, or use another participant's password(s). Such fraudulent conduct may violate Federal or State laws. Amerisilver 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.
4. Privacy, Monitoring and Disclosure, Breach
c. Disclosure of Information. As permitted by applicable law, Amerisilver 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 Amerisilver’s systems and customers, to allow users to resolve disputes, or to ensure the integrity and operation of Amerisilver’s business and systems or other purposes deemed reasonable by Amerisilver, Amerisilver 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 Amerisilver
a. Site Glitches. Amerisilver will offer 100% risk-free purchases, except when a technical glitch prevents that from happening. Any and all funds received during a glitch purchase will be returned by Amerisilver to the customer, if no merchandise has been shipped. Buyers are advised to print a copy or manually note the order number of each order. In the event that an order in which You were involved was affected by a glitch, your failure to record or provide the order number may render Amerisilver unable to investigate the alleged glitch.
b. Breach. Without limiting its other remedies, Amerisilver 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 Amerisilver is unable to verify or authenticate any information You provide to Amerisilver; or (c) if Amerisilver believes that Your actions may cause legal liability for You, other Site users, or Amerisilver.
c. Termination. Amerisilver may terminate this Agreement or Your access to the Site at any time in the event of any conduct by You which Amerisilver, in its sole discretion, considers to be unacceptable.
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. Amerisilver will use commercially reasonable efforts to post and make available to You Your invoices no later than twenty-four (24) hours after Amerisilver accepts Your payment.
iii. 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 Product Page description of such Product.
b. Amerisilver Rights If Payment Not Received In Full. Your selection of a payment method will act as your representation and warranty to Amerisilver 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, Amerisilver may in its sole and absolute discretion cancel Your purchase. At the sole and exclusive discretion of Amerisilver, but without any obligation, Amerisilver may elect to accept alternate methods of payment.
d. Payment Methods.
i. Accepted Payment Forms. Amerisilver currently accepts:
(3) American Express;
(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 Order number (found on the Order Page)
(3) Any promotional coupons you may have applicable to Your purchase.
(4) Payments made payable to: Amerisilver, 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 Amerisilver 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. AMERISILVER 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 AMERISILVER, IS FOR CONVENIENCE ONLY. AMERISILVER MAKES NO WARRANTY ABOUT THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION.
7. 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 Amerisilver being shipped to New York will be charged sales tax on the transaction. Amerisilver will accept New York resale certificates only if submitted before the transaction closes.
c. Your Obligations. Amerisilver’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 Amerisilver. 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 Amerisilver 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.
8. Shipping & Delivery.
a. General Shipping Policies.
i. Available Shippers.
(1) Domestic. All domestic orders (Products shipped within the United States) will be shipped by USPS.
(2) International. All international orders (Products shipped outside of the United States) will be shipped by USPS International.
ii. Time to Ship. Amerisilver will not ship Products or begin to provide services until full payment for such Products or services has been received. 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 Amerisilver’s time to deliver the Product with the shipper. Amerisilver will not be responsible for delays in shipping. Amerisilver 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 Amerisilver 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. Tracking Your Shipment. The Tracking Number will be emailed to you once Your order has been shipped. For questions on the status of Your USPS package, please call the number obtained from USPS.com.
e. Estimated Delivery Date. Once Amerisilver 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.
f. Lost Packages. If You do not receive Your package, please file a claim with Amerisilver promptly, and in any event within 48 hours, from the estimated delivery date of Your package. Amerisilver 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 Amerisilver within such 48 hours from the estimated delivery date of Your package. Please forward all claims issues to: firstname.lastname@example.org.
9. Limited Warranty. Amerisilver 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 Amerisilver Limited Warranty.
10. No Warranties. THE SITE IS PROVIDED ON AN “AS IS” BASIS, AND CUSTOMERS USE THE SITE AT THEIR OWN RISK. AMERISILVER 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 AMERISILVER.
d. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, AMERISILVER DISCLAIMS ANY AND ALL SUCH WARRANTIES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, WHICH YOU MAY OBTAIN FROM AMERISILVER OR THROUGH THE USE OF SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
a. YOUR USE OF THE SITE IS AT YOUR SOLE RISK, AND AMERISILVER 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.
b. IN NO EVENT WILL AMERISILVER 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 AMERISILVER 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, AMERISILVER 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 AMERISILVER 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.
12. Intellectual Property.
a. Trademarks. Amerisilver’s names, logos and tag lines are trademarks of Amerisilver, 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.
13. 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 Amerisilver 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 Amerisilver.
b. Arbitration. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL, AT THE ELECTION OF AMERISILVER, BE RESOLVED BY BINDING ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. IN THE EVENT THAT AMERISILVER 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. AMERISILVER MAY SEEK ANY INTERIM OR PRELIMINARY RELIEF FROM A COURT OF COMPETENT JURISDICTION, IF AMERISILVER BELIEVES IT TO BE NECESSARY OR DESIRABLE TO PROTECT RIGHTS OR PROPERTY PENDING THE COMPLETION OF SUCH ARBITRATION. EACH OF AMERISILVER 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 AMERISILVER AND YOU.
14. 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. Amerisilver 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. Amerisilver’s failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of Amerisilver’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.