Login/Register


[login_widget title=”Login Here”]

TERMS OF SERVICE:

BTU Games (herein referred to as “BTU”), its parent company, subsidiaries, and affiliated companies maintain this and related websites, games, interactive applications, and other digital media.  Welcome to one of our offerings!  Thank you for visiting and learning more about us!

PLEASE READ TEHSE TERMS OF SERVICE CAREFULLY, THEY CONTAIN IMPORTANT INFORMATION.  By USING THIS SITE OR ANY ONLINE SERVICES YOU AGREE TO THESE TERMS OF SERVCIE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, PELASE DO NOT USE THE SITE OR ONLINE SERVICES.

TABLE OF CONTENTS

1. Acceptance of Terms of Service
Each time you access and/or use sites or services, you agree to be bound by these Terms of Service and any additional terms that will apply prospectively to you. You agree to accept notice of posting the new terms via our site on which you accessed these terms.  (More Details Below)

2. Permitted Uses
We only grant you a limited revocable license to use the site or service for your own non-commercial use subject to rules and limitations. (More Details Below)

3. Access to the Site and Availability of Online Services
Your use of our site and services is subject to various restrictions designed to protect the online services and our users. We may change or discontinue our online service in whole or in part. (More Details Below)

4. Registration, Passwords, Unauthorized Use of Your Account, and Sharing of Social Features
The sites and services may include a social network. You will provide true, accurate and current data if you establish an account. Your activities on the online services (including interaction with other members, advertisers, video viewing and audio accessed) may be shared with others. (More Details Below)

5. Digital Items, Subscriptions and Credits
Any digital items and credits are provided subject to a limited revocable license to only you for certain virtual goods and game play, and have no cash value. (More Details Below)

6. You Agree to Our Privacy Policy and Third Party Ads
By accessing and using the online services, you consent to our Privacy Policy and our practices detailed in it, including targeted advertising and the use of tracking technologies. (More Details Below)

7. Wireless Features; Social Media Plug-Ins
Wireless carrier charges may apply to use of our online services via wireless networks or devices and geo-location details. (More Details Below)

8. Your Conduct and Acceptable Use
Your use is subject to our rules regarding acceptable conduct and practices. (More Details Below)

9. Monitoring
BTU may, but has no obligation to, monitor your use of the online services. (More Details Below)

10. User Content; Grant of Limited License
You grant us a broad license to content you post on our online services and bear all responsibility for all such content. No confidential or fiduciary relationship is created by your posting on our online services. (More Details Below)

11. Merchants
BTU is not responsible for your business dealings with merchants found on the online services. (More Details Below)

12. Children’s Online Privacy Protection Act Notification
BTU's online services are not designed or intended for use by children. (More Details Below)

13. Disclaimer of Warranties
We disclaim warranties and provide the online services “As Is.” (More Details Below)

14. Exclusion of Damages
You agree that you are entitled to no damages for any claims related to your use of the online services, except as set out below. (More Details Below)

15. Limitation of Liability. Applicability of Disclaimers, Exclusions and Limits
Our liability to you is limited. (More Details Below)

16. BTU Is Not Responsible For Third-Party Websites and Content
We are not responsible for third parties or their content, advertisement(s), apps or sites, even if they are linked from or included within our online services. (More Details Below)

17. Indemnification
You agree to indemnify us for material posted by you or through your account. (More Details Below)

18. Reservation of Rights
BTY reserves the right to modify or discontinue the site or online services. (More Details Below)

19. Termination

We may terminate your account, password or access in our sole discretion at any time and without prior notice. (More Details Below)

 20. Infringement Policy
You may not post content you do not own or control or otherwise have the right to post, and we encourage you to report any infringing activity you identify on the online services. (More Details Below)

21. Links By You To the Online Services
You may link to our online services, subject to some basic rules. (More Details Below)

22. Responsible Use of Site
Please act responsibly when using the online services. (More Details Below)

23. Investigations
BTU reserves the right to investigate suspected violations of these Terms. (More Details Below)

24. Local Regulations
If you choose to access the services from other locations you do so on your own initiative and at your own risk. (More Details Below)

25. Export Control
There are restrictions on the online services for those countries subject to U.S. export controls. (More Details Below)

26. Binding Arbitration of All Disputes. No Class Relief
You agree to arbitrate and waive jury trial and class actions. (More Details Below)

27. Dispute Resolution for Non-US Residents Only if a Tribunal Has Ruled That Arbitration is Prohibited by Law
Non-US citizens agree to an alternative procedure for dispute resolution if a tribunal rules that arbitration is prohibited by law. (More Details Below)

28. Member Disputes
You are solely responsible for your communications with members or visitors to the online services. (More Details Below)

29. General
By accessing and using the online services, you agree to certain terms regarding (a) to the applicable law and venue; (b) no waiver; (c) the enforcement and interpretation of these Terms of Service; (d) your limited time to file claims; (e) the manner in which you communications with us. You also agree not to assign or delegate your rights and obligations under these Terms of Service. (More Details Below)

 

1. Acceptance of Terms of Service Each time you access and/or use BTU sites or services, you agree to the bound by these Terms of Service and any additional terms that will apply prospectively to you. You agree to accept notice of posting the new terms via our site on which you accessed these terms. If you do not agree with any of these Terms of Service (“Terms of Service” or “Terms”), including the Privacy Policy incorporated herein, please do not use this Site or our online services. By using this Site you will be deemed to have irrevocably agreed to these Terms. Some areas of this Site may be subject to additional terms and conditions, which you should read carefully before making any use of those areas. Such additional terms will not change or replace these Terms regarding use of this Site, unless otherwise expressly stated. BTU may modify these Terms of Service prospectively from time to time in its sole discretion.Your continued use or accessing of the online services following the posting of any changes to the Terms of Service constitutes your acceptance of such changes. You agree to be notified of changes to the Terms of Service via posting of updates on the Site, including, but not limited to requiring of acceptance of Terms of Service at login. EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE ONLINE SERVICES YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM ON THE SITE OR ONLINE SERVICES (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SERVICE AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE OTHER TERMS FOR YOUR NEW USE AND TRANSACTIONS.

 

2. Permitted Uses BTU only grant you a limited revocable license to use the site or service solely for your own non-commercial use subject to rules and limitations. The online services contain material that is derived in whole or in part from material supplied and owned by BTU as well as third parties (“Content”). As between BTU and You, BTU owns all right, title and interest in and to the copyrights, trademarks, service marks, trade names, and all other intellectual and proprietary rights throughout the world associated with the online services and Content. You acknowledge that BTU’s valid intellectual and proprietary property rights in the online services and Content and that your use of the online services is limited to access, viewing and downloading of Content, all solely as authorized by BTU. Nothing in these Terms of Service shall be deemed to convey to you any right, title or interest in or to the online services or Content or to any portion thereof except for the limited rights expressly granted herein. You may use the online services solely for personal and non-commercial uses. You may not either directly or through the use of any personal computer, browser, laptop, tablet, mobile phone or other device (each a “device”) or other means remove, alter, bypass, avoid, interfere with, or circumvent (i) any copyright, trademark, or other proprietary notices marked on the online services or Content, (ii) any digital rights management mechanism, device, or other content protection or access control measure associated with the online services or Content, or (iii) any advertisement on the online services and/or within Content. You may not either directly or through the use of any device or other means copy, download, stream, reproduce, duplicate, archive, distribute, upload, publish, modify, translate, broadcast, perform, display, sell, transmit or retransmit the online services or Content unless expressly permitted by BTU in writing. You may not incorporate Content into, or stream or retransmit the Content via, any hardware or software application or make the online services or any Content available via frames or in-line links, and you may not otherwise surround or obfuscate the Content or online services with any third party content, materials or branding. You may also not use any software robots, spider, crawlers, or other data gathering or extraction tools, whether automated or manual, to access, acquire, copy, monitor, scrape or aggregate Content or any portion of the online services. You may not knowingly or intentionally take any action that may impose an unreasonable burden or load on the online services or its servers and infrastructures. You may not build a business, in whole or in part, resell, redistribute or recirculate or make any other commercial use of, or create derivative works or materials utilizing any portion of the online services or Content, whether or not for profit. To the extent that BTU makes Content available to you via a widget, embedded player or other technology that allows you to embed or stream Content on or to another site, you may not modify, enhance, remove, interfere with, or otherwise alter in any way any portion of such technology, any digital rights management mechanism, device, or other content protection or access control measure associated with Content, or any advertisement delivered with Content. You are also prohibited from disabling, modifying, interfering with or otherwise circumventing any technology to allow users to view Content without: (i) displaying visibly both Content and all surrounding elements (including the graphical user interface, any advertising, copyright notices, and trademarks); and (ii) having full access to all functionality permitting viewing of Content, including, without limitation, all video quality and display functionality and all interactive, elective or click-through advertising functionality.

3. Access to the Site and Availability of Online Services The Site and online services are intended for use by users who are over the age of 13 and reside in the United States, its territories and possessions (“U.S.”) or those outside of the U.S. that consent to use the online services in accordance with U.S. laws, this Terms of Service and the Privacy Policy. By using or attempting to use the Site or online services, you certify that you meet any other eligibility and residency requirements of the Site. BTU may change, suspend or discontinue any aspect of the Site or online services at any time (and any elements and features of them), in whole or in part, for any reason, in our sole discretion, without notice or liability, including pursuant to Section 18 (Termination) below. You are responsible for any charges incurred in obtaining access to the Site and online services. The Site and online services are provided for a fee (subscription or package), although you may be given the opportunity to purchase additional products or services through the Site from BTU. BTU reserves the right to change the nature of this relationship at any time. You and we agree that the Convention on Contracts for the International Sale of Goods does not apply to your use of our online services or this Terms of Service.

4. Registration, Passwords, Unauthorized Use of Your Account, and Sharing of Social Features If you establish an account with BTU, you agree to provide true, accurate and current data in connection with that account. Any usernames and passwords used for this Site or services are for individual use only. You are solely responsible for maintaining the security and confidentiality of the password you use to access your account. You agree to immediately notify BTU of any unauthorized use of your password or account or any other breach of security. You understand and agree that the Site and/or online services may include a social network and your activities (e.g., video viewing, interactions with members and/or advertisers) may be shared with others both on and off the online services. If you don’t want your activities on such social network to be shared, your only option is to deactivate the related social network account.

5. Digital Items, Subscriptions and Credits Purchases of usage subscriptions (including credits, points, and/or virtual currency) or any virtual items made available on the online services are nonrefundable, have no monetary value (i.e., are not a cash account or equivalent), and are purchases of only a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable right to use, even if such came with a durational term (e.g., a monthly subscription). Accordingly, you have no property, proprietary, intellectual property, ownership, or monetary interest in your usage subscriptions or virtual items, which remain our Content. We may also immediately suspended or terminate the rights we grant you to usage subscriptions and virtual items for any or no reason, in our sole discretion, and without advance notice or liability. We may modify usage subscriptions and virtual items at our sole discretion, and such modifications may make the usage subscriptions or virtual items more or less common, valuable, effective, or functional. We do not recognize the transfer of usage subscriptions or virtual items (including for “real” money or any other consideration or items of value whether inside our outside of the online services). Accordingly, you may not purchase, sell, barter, or trade any usage subscriptions or virtual items, or offer to purchase, sell, or trade any usage subscriptions or virtual items. Any such attempted transfer will be null and void. If we suspend or terminate any usage subscriptions or virtual items, then you will forfeit the suspended or terminated subscription or items, except as may be set forth in any Additional Terms (such as any refund policies that may apply to a subscription service). Likewise, except as may be set forth in any Additional Terms or as required by applicable law, we are not responsible for repairing or replacing same, or providing you any credit or refund or any other sum, in the event of our modification of any usage subscriptions or virtual item, or for loss or damage due to error, or any other reason.

6. You Agree to Our Privacy Policy and Third Party Ads Your privacy is important to us. To better protect your privacy, we provide a notice explaining our online information practices and the choices you can make about the way your information is collected and used at this Site and the online services. Any personal details and data acquired by BTU from your participation on the online services will be used in accordance with our Privacy Policy and Tracking (Cookies) Technologies Policy, including targeted advertising and tracking information we collect automatically.

7. Wireless and Location-Based Features; Social Media a) Wireless Features. The online services may offer certain features and services that are available to you via your wireless device. These features and services may include the ability to access the online services’ features and upload content to the online services, receive messages from the online services, and download applications to your wireless device (collectively, “Wireless Features”). Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless device. In addition, your carrier may charge you for standard messaging, data, and other fees to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. We have no responsibility or liability for any fees or charges you incur when using Wireless Features. You should check with your carrier to find out whether any fees or charges will apply, what plans are available and how much they cost. You should also contact your carrier with any other questions regarding these issues. (b) Terms of Wireless Features. If you register for any Wireless Features then you agree that, in connection with those Wireless Features, we may send communications to your wireless device regarding us or other parties. Further, we may collect information related to your use of the Wireless Features in accordance with our Privacy Policy. If you have registered via the online services for Wireless Features, then you agree to notify BTU of any changes to your wireless contact information (including phone number) and update your accounts on the online services to reflect the changes. (c) Location-Based Features. For online services on mobile devices (“Mobile Apps”) when you use one of our location-enabled services, we may collect and process information about your actual location. Some of the Mobile Apps or online services require your location information for the feature to work. If you have enabled GPS, geo-location or other location-based features on a device, you acknowledge that your device location will be tracked and may be shared with others consistent with the Privacy Policy. (d) Social Media Plug-Ins. Social media plug-ins of social networks such as Facebook, Twitter and Google Plus (amongst others) are integrated on our Site and other online services. Where our online services contain a plug-in to a social network, these are clearly marked (e.g. with a Facebook button). If you chose to click on one of these buttons or links, your browser connects directly to the servers of the relevant social network. The social network directly transmits the content of the plugin to your browser. If you are registered on the relevant social network and logged into your respective account the social network receives the information that the web page was used by you. If you interact with a social network plug-in (e.g. you press the Facebook “Like” feature, the Twitter “Tweet this” feature and Google Plus “1+” button or equivalent) or drop a comment on the appropriate web page, the corresponding information is directly transmitted to the relevant social network from your browser. If you are not registered with the social network or you are logged out before you visit our online services, there is the possibility that at least your IP address will be submitted to and stored by the social network. If you interact with us through a social media platform, plug-in etc., then you may be permitting us to have on-going access to certain information from your social network profile (such as name, social networking id page, email address, photo, gender, location, the people/sites you follow etc.). If you don’t want the social network to collect the information about you described above, or to share it with us and other third parties, please review the privacy policy of the relevant social network and/or log out of the relevant social network before you visit our online services. As with other sites, you may be able delete any existing cookies placed on your computer by the social network via your browser. See Section 1 of our Privacy Policy to find out more about how our Sites contain plug-ins to social media networks.

 

8. Your Conduct and Acceptable Use The following rules are a condition of your use of and access to the online services. You are responsible for the content of your communications (including User Content as defined in Section 10) via the online services. - No Interference. You may not interfere with any other user from using or enjoying the online services. - Bullying. You may not use the online services to threaten, abuse, harass, or invade the privacy of any third party. - Content Posted by You Must be Yours. You may not upload, post, transmit or otherwise distribute or facilitate the distribution of content that is fraudulent or infringes the rights of any third party, including without limitation, patent, trademark, copyright, right of publicity or other proprietary rights. - Your Materials Must be Lawful and Appropriate. You may not upload, post or otherwise distribute or facilitate the distribution of any unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, profane, indecent or otherwise inappropriate information of any kind, including without limitation, any images or other material of a sexual nature. - Don’t Damage Our Site, Online Services or Servers. You may not upload, post or otherwise distribute or facilitate the distribution of a software virus or any other computer code that is designed or intended to disrupt, damage, or limit the functioning of the Site, any other online services, or to obtain unauthorized access to the online services or Content or any data or other information of any third party. - No Unauthorized Access. You may not attempt to gain unauthorized access to other computer systems or networks connected to the online services or use the online services, Content or any information contained therein for any unlawful purpose. BTU, in its sole and absolute discretion, shall determine whether any content you transmit or receive or your use of the online services violates this provision. - No Collection of Personal Information From Other Users and No Commercial Use. You may not collect information about other users of the online services in violation of our Privacy Policy or use any such information for the purpose of transmitting or facilitating transmission of unauthorized or unsolicited advertising, junk or bulk email, chain letters, or any other form of unauthorized solicitation. - Be Yourself. You may not impersonate or falsely state or otherwise misrepresent your professional or other affiliation BTU or with any other person or entity. - No Criminal or Unlawful Conduct. You may not use the online services, Content or any information contained therein for any unlawful purpose, and you may not encourage conduct that would constitute a criminal offense or give rise to civil liability. You may not use any services in connection with any site or other use that contains or is associated with information or content prohibited by this section. - Follow These Terms of Service and Conduct Rules. You may not take any action on the online services that violates any applicable law or these Terms of Service. - We may require, at any time, proof that you are following these rules. We reserve the right to take, or refrain from taking, any and all steps available to us, including suspending or terminating your access to the online services or seeking other legal or equitable remedies, once we become aware of any violation of these provisions.

9. Monitoring BTU may, but has no obligation to, monitor the use by you and other end users of the online services. During monitoring, any information relating to any user or their respective activities on the online services may be examined, recorded, copied, and used for authorized purposes in accordance with our Privacy Policy. Furthermore, BTU reserves the right at all times to disclose any information posted on any portion of the online services as necessary to satisfy any law, regulation or governmental request, or to refuse to post, or to remove, any information or materials, in whole or in part, that in BTU’s sole and absolute discretion are objectionable or in violation of these Terms of Service.

 

10. User Content; Grant of Limited License Reviews, responses, profile entries, posts or questions may not be able to be deleted once uploaded. For some of our features, other members may be able to request email notifications of your new public content or publish their own comments to your comments. We may use the public content to develop aggregate ratings, personalize site views, market products or identify or feature popular members. If you post or upload any content to the Services (“User Content”), you hereby acknowledge and agree that you are granting BTU (including without limitation, its licensees, affiliates, successors and assigns) a worldwide, royalty-free, perpetual, irrevocable, sub-licensable, non-exclusive right and license to use, reproduce, publicly display, publicly perform, modify, sublicense, and distribute such User Content, and incorporate it in other works, in whole or in part, in any manner and any media now known or hereafter developed. You represent and warrant that you own such content or otherwise have sufficient rights in the content to grant to BTU the foregoing license without infringing or violating the rights of any third party. Without in any way limiting the foregoing, you acknowledge and agree that BTU, its licensees, affiliates, successors and assigns, shall have the right to sell, license, assign and otherwise transfer any and all of the rights granted by you to BTU under these Terms of Service, and to display any advertising, publicity, promotional materials and distribution rights in connection with your User Content. You acknowledge and agree that BTU, its licensees, affiliates, successors and assigns, will be entitled to retain any and all revenue generated from any sales, licenses, assignments and other transfers of the rights granted by you hereunder, as well as any and all revenue generated by the display of any advertising, publicity, promotional materials or distribution rights in connection with your User Content. Nothing in these Terms of Service obligates or may be deemed to obligate BTU or any other person or entity to exercise any of the rights granted by you under these Terms of Service. You will not receive any compensation of any kind for your User Content or the use thereof, and you agree that there is no industry or other custom or practice that will vary these Terms of Service. You agree that BTU, its licensees, successors and/or assigns, shall have no obligation to give you credit for your User Content, but in their sole discretion may elect to do so. No Rights Created by Submission and No Payment for User Content: Your User Content will not be acknowledged or returned. You acknowledge and agree that your User Content is being sent voluntarily by you, and not in confidence, and that no confidential relationship is intended or created between BTU, and/or any other person or entity, on the one hand, and you, on the other hand, by your submission of the User Content. You also agree that BTU does not intend and will not pay you for any User Content. You understand that no industry custom or practice changes your agreement that you will not be paid for any User Content. Use of Name and Likeness: By posting User Content on the online services, you consent to the recording, use and reuse by BTU, its licensees, successors and assigns, of your voice, actions, likeness, name, appearance, profile photograph, performance, biographical material, and any other identifying information, including, without limitation, any information contained in your User Content (collectively, “Personal Elements”), as used, edited, altered, fictionalized or modified by BTU, in its sole discretion, in any and all media now known or hereafter devised, throughout the world, in perpetuity, including, without limitation, in and in connection with BTU, or related Sites or online services, in and in connection with any television programs and other productions, and in and in connection with advertising, promotion and publicity. Ownership: Except as expressly set forth in these Terms of Service, you shall continue to own all rights in and to the User Content. To the extent your User Content contains other materials or elements owned by BTU or any other affiliated company, such as characters or other elements protected by copyright, trademark or other laws, your rights to make any other use of the User Content will continue to be governed by and may be limited by other applicable laws, the rights of third parties and BTU. Idea Submissions Prohibited: BTU does not accept unsolicited submissions for motion pictures, television programs, websites, articles, streaming video, e-books, or other products or services. Therefore, please do not make any such unsolicited submissions to BTU through the online services, including posts on any Site or any third party social network or website, or by e-mail, text message or any other means. However, if you decide to make any such unsolicited submission, you hereby grant to BTU the right and license to the submission as if it were User Content as specifically set forth above. In addition, BTU retains all of the rights held by members of the general public with regard to your unsolicited ideas and materials. BTU’s receipt of your unsolicited ideas and materials is not an admission by BTU of their novelty, priority, or originality, and it does not impair BTU’s right to contest existing or future intellectual property rights relating to your unsolicited ideas and materials. Public Nature of Online Services: While we may offer you the ability to post User Content anonymously, please be aware that your account information relating to your User Content is still stored by us. User Content does not reflect the views of BTU. Notwithstanding anything else in these Terms of Service, BTU should not be seen as endorsing any User Content in any way. None of BTU or its officers, directors, and employees, subsidiaries and/or affiliates shall be liable for any User Content. You acknowledge that you have no expectation of privacy with regard to any User Content. Liability for User Content: User Content does not reflect the views of BTU. Notwithstanding anything else in these Terms of Service, BTU should not be seen as endorsing any User Content in any way. User Content posted through the online services are provided by users like you who are unaffiliated with BTU, and the user providing User Content is solely responsible for his/her own User Content. This means that you, and not BTU, are entirely responsible and liable for any claims, loss or damages relating to all User Content that you upload, post, email or otherwise transmit via the online services. None of BTU or its affiliates, or its or their officers, directors, and employees, subsidiaries and/or affiliates are responsible for User Content, accuracy or opinions expressed on the online services, nor shall they have any liability for any such User Content. BTU does not investigate, monitor or check for accuracy or completeness of User Content. You understand that by using the Site or online services, you may be exposed to User Content that is offensive, indecent, or objectionable.

11. Merchants Your correspondence or business dealings with, or participation in promotions of, merchants found on or through the online services, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such merchant. BTU will not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such merchants on the online services.

12. Children’s Online Privacy Protection Act Notification BTU is not designed or intended for use by children under the age of 13. Pursuant to 47 U.S.C. Section 230(d) as amended, BTU hereby notifies you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available at the Electronic Frontier Foundation website, http://www.eff.org. To view information on our policy regarding the privacy of children under the age of 13, please see our Privacy Policy.

13. Disclaimer of Warranties While BTU uses reasonable efforts to include up to date information on the Site and online services, BTU makes no warranties or representations as to its accuracy, timeliness, reliability, completeness or otherwise. BTU PROVIDES THE ONLINE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BTU, ITS PARENT, ITS AFFILIATES, AGENTS AND LICENSORS (COLLECTIVELY, THE “BTU PARTIES”) DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, BTU DOES NOT WARRANT THAT THE ONLINE SERVICES, OR YOUR ACCESS TO OR USE OF THE ONLINE SERVICES WILL (1) BE UNINTERRUPTED; (2) BE FREE FROM INACCURACIES, ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS; (3) MEET YOUR REQUIREMENTS; OR (4) OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. BTU DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THIS SITE WILL BE AVAILABLE, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVERS THAT MAKE THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. BTU DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIAL, INFORMATION, SOFTWARE, FACILITIES, SERVICES OR OTHER CONTENT ON THE SITE OR ANY WEB SITES LINKED TO THE SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. BTU MAKES NO WARRANTIES THAT YOUR USE OF THE MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICE OR OTHER CONTENT IN THE SITE OR ANY WEB SITE WILL NOT INFRINGE THE RIGHTS OF OTHERS AND BTU ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS IN SUCH MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICE OR OTHER CONTENT OF THE SITE OR ANY OTHER WEB SITE. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES TO APPLY TO YOU, THE ABOVE EXCLUSIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.

14. Exclusion of Damages NONE OF THE BTU PARTIES WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) OR ANY DAMAGES WHATSOEVER THAT RESULT FROM YOUR USE OF OR INABILITY TO USE THE SITE OR SERVICES. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, AND EVEN IF BTU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THIS WAIVER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, OR THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF ANY RECORD. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT EACH OF THE BTU PARTIES SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER OF THE SITE OR OTHER SERVICE. WITHOUT LIMITING THE FOREGOING, BTU WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING OUT OF (1) YOUR FAILURE TO COMPLY WITH SECTION 4 (REGISTRATION, PASSWORDS, UNAUTHORIZED USE OF YOUR ACCOUNT, AND SHARING OF SOCIAL FEATURES) OR (2) CONTENT POSTED TO THE SITE OR SERVICES BY YOU OR ANY THIRD PARTY.

15. Limitation of Liability. Applicability of Disclaimers, Exclusions and Limits IN NO EVENT WILL THE BTU PARTIES’ AGGREGATE LIABILITY TO YOU IN CONNECTION WITH THE SITE AND SERVICE OR THESE TERMS EXCEED (A) THE AMOUNT (IF ANY) PAID BY YOU TO BTU IN THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE LIABILITY; OR (B) ONE HUNDRED DOLLARS ($100), WHICHEVER IS LESS. BECAUSE SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF DAMAGES, BTU PARTIES’ LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY THE LAW OF SUCH JURISDICTION. IN ADDITION, BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN WARRANTIES, THE DISCLAIMERS SET FORTH ABOVE MAY NOT APPLY TO YOU. THIS PARAGRAPH WILL ONLY APPLY IF AN ARBITRATOR WITH APPLICABLE JURISDICTION FINDS EXCLUSIONS OF DAMAGES OR LIMITATIONS OF LIABILITY TO BE UNCONSCIONABLE.

16. BTU is Not Responsible For Third-Party Websites and Content For your convenience, the online services may provide links to websites of other persons or entities (“Third-Party Websites”). HOWEVER, THE THIRD-PARTY WEBSITES ARE NOT CONTROLLED BY BTU. ACCORDINGLY, BTU MAKES NO WARRANTIES OR CONDITIONS REGARDING SUCH THIRD-PARTY WEBSITES HAS NO RESPONSIBILITY FOR THE CONTENTS OF SUCH THIRD-PARTY WEBSITES, AND WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR USE OF OR RELIANCE ON SUCH THIRD-PARTY WEBSITES. YOUR USE OF THIRD-PARTY WEBSITES IS AT YOUR OWN RISK. THE INCLUSION ON THE SITE OR OTHER SERVICE OF A LINK TO A THIRD-PARTY WEBSITE DOES NOT IMPLY AN ENDORSEMENT BY BTU. WHEN YOU ACCESS ANY OF THESE THIRD-PARTY SITES, PLEASE UNDERSTAND THAT IF YOU VISIT THIRD-PARTY WEBSITES THEN YOUR RIGHTS AND OBLIGATIONS WHILE ACCESSING AND USING THOSE SITES WILL BE GOVERNED BY THE AGREEMENTS AND POLICIES RELATING TO THE USE OF THOSE SITES.

 

17. Indemnification You agree to defend, indemnify and hold harmless BTU, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, demands, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable legal fees and costs) arising out of or accruing from (a) any breach of these terms, including any of the foregoing provisions, representations or warranties, and/or from your placement or transmission of any content onto Btu’s servers, and/or from any and all use of your account; (b) any material posted or otherwise provided by you (including without limitation User Content), or any other subscriber or user of your account that infringes any intellectual property right of any person or entity or defames any person or violates their rights of publicity or privacy; (c) any misrepresentation made by you in connection with your use of the online services; and (d) any breach of any of the representation, warranties or other terms or conditions relating to use of your User Content or the online services.

18. Reservation of Rights BTU reserves the right to modify or discontinue, temporarily or permanently, all or any part of this Site and/or any software, facilities and services on this Site, with or without notice, and/or to establish general guidelines and limitations on their use.

19. Termination BTU may, in its sole discretion, terminate your password, account (or any part thereof) or use of the online services, or remove and discard any User Content or information stored, sent, or received via the online services without prior notice and for any reason or no reason, including, but not limited to: (i) permitting another person or entity to use your identification to access the Site or online services, (ii) any unauthorized access or use of the online services, (iii) any violation of these Terms of Service, or (iv) tampering with or alteration of any of the software, data files, and/or Content contained in or accessed through, the online services. You may terminate your account for any reason or no reason. Termination, suspension, or cancellation of these Terms of Service or your access rights to the online services shall not affect any right or relief to which BTU may be entitled, at law or in equity. Upon such termination, suspension, or cancellation, all rights granted to you will automatically terminate and immediately revert to BTU and its licensors and all rights granted by you to BTU shall survive in perpetuity.

20. Infringement Policy BTU respects the intellectual property of others, and we ask our users to do the same. This Site and materials incorporated by BTU on this Site (“Material”) are protected by copyrights, patents, trade secrets or other proprietary rights (“Copyrights”). Some of the characters, logos or other images incorporated by BTU on this Site are also protected as registered or unregistered trademarks, trade names and/or service marks owned by BTU or others (“Trademarks”). BTU, pursuant to 17 U.S.C. Section 512 as amended by Title II of the Digital Millennium Copyright Act (the “Act”), reserves the right, but not the obligation, to terminate your license to use the online services if it determines in its sole and absolute discretion that you are involved in infringing activity, including alleged acts of first-time or repeat infringement, regardless of whether the material or activity is ultimately determined to be infringing. BTU accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials. Therefore, in compliance with the Act, if you believe that any such third party materials infringe your intellectual property please send a written notice to BTU to request a review of the alleged infringement. In addition, any written notice regarding any defamatory or infringing activity, whether of a copyright, patent, trademark or other proprietary right must include the following information: (a) Your name, address, telephone number, and e-mail address; (b) A physical or electronic signature of a person authorized to act on behalf of (1) the owner of an exclusive right that is allegedly infringed or (2) the person defamed; (c) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the online services are covered by a single notification, a representative list of such works. Similarly, for materials that are defamatory or infringe patent, trademark, or other proprietary rights of a third party, please submit a list of such materials; (d) Identification of the material that is claimed to be infringing, to be the subject of infringing activity, or that is claimed to be defamatory and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit BTU to locate the material; (e) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright or other proprietary right owner, its agent, or the law; and (f) A statement that the information in the notice 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 or on behalf of the person defamed.

21. Links By You To the Online Services We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the online services, so long as: (a) the links only incorporate text, and do not use any trademarks, (b) the links and the content on your website do not suggest any affiliation with or endorsement by BTU or cause any other confusion regarding your relationship to BTU or its affiliates or to the online services, (c) the link must open in a new browser window and link to the full version of applicable online services web page; and (d) the links and the content on your website do not portray BTU or its affiliates or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to BTU. BTU reserves the right to suspend or prohibit linking to the online services for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.

22. Responsible Use of Site Please act responsibly when using this Site and online services. You may only use this Site and its contents for lawful purposes and in accordance with applicable law and you are prohibited from storing, distributing or transmitting any unlawful material through this Site. You may not collect or store personal information regarding other users. You recognize that storing, distributing or transmitting unlawful material could expose you to criminal and/or civil liability. You agree that if a third party claims that material you have contributed to the online services is unlawful, you will bear the burden of establishing that it is lawful. You understand and agree that all materials publicly posted or privately transmitted on or through this Site or online services are the sole responsibility of the sender, not BTU, and that you are responsible for all material you upload, publicly post or otherwise transmit to or through this Site or online services.

23. Investigations BTU reserves the right to investigate suspected violations of these Terms, including without limitation any violation arising from any submission, posting or e-mails you make or send to any forum. BTU may seek to gather information from the user who is suspected of violating these Terms, and from any other user. BTU may suspend any users whose conduct or postings are under investigation and may remove such material from its servers as it deems appropriate and without notice. If BTU believes, in its sole discretion, that a violation of these Terms has occurred, it may edit or modify any submission, posting or e-mails, remove the material permanently, cancel postings, warn users, suspend users and passwords, terminate accounts or take other corrective action it deems appropriate. BTU will fully cooperate with any law enforcement authorities or court order requesting or directing BTU to disclose the identity of anyone posting any e-mails, or publishing or otherwise making available any materials that are believed to violate these Terms. BY ACCEPTING THIS AGREEMENT YOU WAIVE AND HOLD HARMLESS ALL MEMBERS OF BTU FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY MEMBER OF BTU DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUNCE OF INVESTIGATIONS BY EITHER A MEMBER OF BTU OR LAW ENFORCEMENT AUTHORITIES.

24. Local Regulations BTU makes no representation that content on the Site or online services are appropriate or available for use outside the United States, its territories, possessions and protectorates. If you choose to access the online services from other locations you do so on your own initiative and at your own risk. You are responsible for complying with local laws, if and to the extent local laws are applicable. You specifically agree to comply with all applicable laws concerning the transmission of technical data exported from the United States or the country in which you reside.

25. Export Control Unless otherwise specified, the materials on the online services are presented solely to provide information regarding and to promote BTU services and other products available in the U.S. The online services are controlled and operated by BTU from its offices within the State of New York. BTU makes no representation that materials on the online services are appropriate or available for use outside the U.S. Those who choose to access the online services from outside the U.S. do so on their own initiative and are responsible for compliance with local laws, if and to the extent that local laws are applicable. Software from the online services are further subject to U.S. export controls. No software may be downloaded or otherwise exported or re-exported (A) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country to which the U.S. has embargoed goods, or (B) to anyone on the U.S. Treasury Department list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By using the online service, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.

26. Binding Arbitration of All Disputes. No Class Relief This Section 26 is deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and BTU agree that we intend that this Section 26 satisfies the “writing” requirement of the Federal Arbitration Act. This Section 26 can only be amended by mutual agreement. For non-U.S. residents, if binding arbitration is adjudged by a tribunal to be unenforceable, the provisions of Section 26 shall apply to all relevant disputes between you and us. We believe that arbitration is a faster, more convenient and less expensive way to resolve any disputes or disagreements that you may have with us. Therefore, pursuant to these Terms of Service, if you have any dispute or disagreement with us regarding (i) your use of or interaction with the Site or other online services, (ii) any purchases or other transactions or relationships with BTU, or (iii) any data or information you may provide to BTU or that BTU may gather in connection with such use, interaction or transaction (collectively, “BTU Transactions or Relationships”), you will not have the right to pursue a claim in court, or have a jury decide the claim and you will not have the right to bring or participate in any class action or similar proceeding in court or in arbitration. By using or interacting with the Site or other online service, or engaging in any other BTU Transactions or Relationships with us, you agree to binding arbitration as provided below. We will make every reasonable effort to informally resolve any complaints, disputes, or disagreements that you may have with us. If those efforts fail, by using our Site or other online service, you agree that any complaint, dispute, or disagreement you may have against BTU, and any claim that BTU may have against you, arising out of, relating to, or connected in any way with these Terms of Service, our Privacy Policy, or any BTU Transactions or Relationships shall be resolved exclusively by final and binding arbitration (“Arbitration”) administered by JAMS or its successor (“JAMS”) and conducted in accordance with the JAMS Streamlined Arbitration Rules And Procedures in effect at the time the Arbitration is initiated or, if the amount in controversy exceeds $100,000, in accordance with the JAMS Comprehensive Arbitration Rules And Procedures then in effect (respectively, the “Applicable Rules”). The Applicable Rules can be found at www.jamsadr.com. If JAMS is no longer in existence, the Arbitration shall be administered by the American Arbitration Association or its successor (the “AAA”) instead, and conducted in accordance with the AAA Commercial Arbitration Rules in effect at that time (which shall be the “Applicable Rules” in such circumstances). If JAMS (or, if applicable, AAA) at the time the arbitration is filed has Minimum Standards of Procedural Fairness for Consumer Arbitrations in effect which would be applicable to the matter in dispute, BTU agrees to provide the benefit of such Minimum Standards to you to the extent they are more favorable than the comparable arbitration provisions set forth in this Section 26, provided, however, that in no event may such Minimum Standards contravene or restrict the application of subpart (e) or (i) below. Furthermore, this Section 26 shall not prevent any party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. You further agree that: (a) Single Arbitrator. The Arbitration shall be conducted before a single arbitrator selected in accordance with the Applicable Rules or by mutual agreement between you and BTU (the “Arbitrator”); (b) Arbitrator Will Interpret This Agreement. The Arbitrator, and not any federal, state or local court or agency, shall have the exclusive authority to resolve any dispute arising under or relating to the validity, interpretation, applicability, enforceability or formation of these Terms of Service and/or these arbitration provisions in Section 26 hereof, including but not limited to any claim that all or any part of these Terms of Service is void or voidable; (c) Location of Arbitration. The Arbitration shall be held either: (i) at a location determined by JAMS (or, if applicable, AAA) pursuant to the Applicable Rules (provided that such location is reasonably convenient for you and does not require travel in excess of 100 miles from your home or place of business); or (ii) at such other location as may be mutually agreed upon by you and BTU; or (iii) at your election, if the only claims in the arbitration are asserted by you and are for less than $10,000 in aggregate, by telephone or by written submission; (d) Governing Law. The Arbitrator (i) shall apply internal laws of the State of New York consistent with the Federal Arbitration Act and applicable statutes of limitations, or, to the extent (if any) that federal law prevails, shall apply the law of the U.S., irrespective of any conflict of law principles; (ii) shall entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with New York or federal rules of procedure, as applicable; (iii) shall honor claims of privilege recognized at law; and (iv) shall have authority to award any form of legal or equitable relief; (e) No Class Relief. The Arbitration can resolve only your and/or BTU individual claims, and the Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated; (f) Written Award. The Arbitrator shall issue a written award supported by a statement of decision setting forth the Arbitrator’s complete determination of the dispute and the factual findings and legal conclusions relevant to it (an “Award”). Judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets; (g) Arbitration Costs. In the event that you are able to demonstrate that the costs of Arbitration will be prohibitive as compared to the costs of litigation, BTU will pay as much of your filing and hearing fees in connection with the Arbitration as the Arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the Arbitration, unless the Arbitrator determines that your claim(s) were frivolous or asserted in bad faith; (h) Reasonable Attorney’s Fees. In the event you recover an Award greater than BTU last written settlement offer, the Arbitrator shall also have the right to include in the Award BTU’s reimbursement of your reasonable and actual out-of-pocket attorneys’ fees associated with the Arbitration, but BTU shall in all events bear its own attorneys’ fees; and (i) Interpretation and Enforcement of Arbitration Clause. With the exception of subpart (e) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Applicable Rules, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor BTU shall be entitled to arbitrate their dispute, and must instead bring any claims in a court of competent jurisdiction. (j) Modification of Arbitration Clause With Notice. BTU may modify these arbitration provisions, but such modifications shall only become effective thirty (30) days after BTU has given notice of such modifications and only on a prospective basis for claims arising from BTU Transactions and Relationships occurring after the effective date of such notification. (k) Small Claims Matters are Excluded. No Class Relief or Joinder of Claims. Notwithstanding the foregoing arbitration provisions, at your option, you may bring any claim you have against BTU in your local small claims court within the U.S., if your claim is within such court’s jurisdictional limit; provided that such court does not have the authority to entertain any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated in such proceeding.

27. Dispute Resolution for Non-US Residents Only if a Tribunal has Ruled that Arbitration is Prohibited by LawThis Section 27 applies to non-US Residents, where applicable law prohibits arbitration of disputes in accordance with Section 26.(a) Section 27 disputes. If any controversy, allegation, or claim (including any non-contractual claim) arises out of or relates to the online services, the Content, these Terms of Service, whether heretofore or hereafter arising or to any of BTU’s actual or alleged intellectual property rights (collectively, a “Section 27 Dispute”), then you and we agree to send a written notice to the other providing a reasonable description of the Section 27 Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 27(a). Your notice to us must be sent to BTU home address. For a period of sixty (60) days from the date of receipt of notice from the other party, BTU and you will engage in a dialogue in order to attempt to resolve the Section 27 Dispute, though nothing will require either you or BTU to resolve the Section 27 Dispute on terms with respect to which you and BTU, in each of our sole discretion, are not comfortable. (b) Jurisdiction. The parties agree that the state or federal courts in New York shall have non-exclusive jurisdiction of any Section 27 Dispute. (c) Governing Law. To the maximum extent permitted by the mandatory laws in your country of residence, these Terms of Service and any Section 27 Dispute arising out of or in connection with it or its subject matter or formation (including non-contractual disputes), will be governed by, and construed in accordance with, the laws of the U.S. and the State of New York without regard to its conflicts of law provisions, without regard to its conflicts of law provisions. (d) Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A SECTION 27 DISPUTE AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 27(a) WITHIN ONE (1) YEAR AFTER DISCOVERY OF THE SECTION 27 DISPUTE ARISES - OR IT WILL BE FOREVER BARRED. (e) Injunctive Relief. The foregoing provisions of this Section 27 will not apply to any legal action taken by BTU to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the online services, any Content, your User Content and/or BTU’s intellectual property rights (including such BTU may claim that may be in dispute), BTU’s operations, and/or BTU’s products or services.

28. Member Disputes You are solely responsible for any interaction with other members or visitors to the online services, and BTU reserves the right, but shall have no obligation, to monitor disputes between you and any other member of BTU.

29. General (a) Applicable law. These Terms of Service, any Additional Terms and the relationship between you and BTU shall be governed by the laws of the U.S. and the State of New York without regard to its conflicts of law provisions. (b) Venue. Subject to the arbitration provisions above, and other than small claims actions as permitted therein, any action or proceeding arising from, relating to or in connection with these Terms of Service will be brought exclusively in the federal or state courts located in New York, New York, and you irrevocably consent to the personal jurisdiction of such courts and agree that it is a convenient forum and that you will not seek to transfer such action or proceeding to any other forum or jurisdiction, under the doctrine of forum non conveniens or otherwise. (c) No Waiver. No failure or delay by BTU in exercising any right, power or privilege under these Terms of Service will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under these Terms of Service. (d) Severability. Unless otherwise expressly provided herein, the invalidity or unenforceability of any provision of these Terms of Service will not affect the validity or enforceability of any other provision, all of which will remain in full force and effect. (e) Limited Time to File Claims. You agree that regardless of any statute or law which establishes a different statute of limitations, to the maximum extent permitted under applicable law, any claim or cause of action (including any arbitration) arising out of, related to or connected with the use of the Site or other online services, or these Terms of Service, our Privacy Policy, or other BTU Transactions or Relationships must be filed within one (1) year after such claim or cause of action arose or be forever barred. (f) Paragraph and Section Titles are For Your Convenience The paragraph or section titles in these Terms of Service are for convenience only and have no legal or contractual effect. (g) This is the Entire Agreement. These Terms of Service represent the entire understanding of the parties regarding its subject matter, and supersede all prior and contemporaneous agreements and understandings between the parties regarding its subject matter, and may not be amended, altered or waived except in writing by the party to be charged. (h) Assignment. These Terms of Service are binding upon and shall ensure to the benefit of parties and their respective successors, heirs, executor, administrators, personal representatives and permitted assigns. You shall not assign your rights or obligations hereunder without BTU’s prior written consent. (i) Connectivity. You are responsible for obtaining and maintaining all devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the online service and you will be responsible for all charges related to them.

 

 

INDEPENDENT CONTRACT MARKETER AGREEMENT

By accepting this Independent Contract Marketer Agreement, completely and in full, without changes, you (herein referred to as “Independent Marketer”) voluntarily agrees to be an Independent Marketer for BTU GAMES (hereafter referred to as “BTU”) and agree to have the ability to Independently sell, market, and solicit others for BTU Games’ subscriptions, packages, and products in return for commission for such sales as set out by the Compensation listed hereunder (in “Compensation”).

NOW, THEREFORE, in consideration of the covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. SERVICES/ACCOUNTABILITIES: BTU hereby engages the Independent Marketer on a non-exclusive basis during the Term (as defined below) performing such marketing services as BTU Games authorizes on its website.  BTU acknowledges that Independent Marketer Services shall be performed at such times as are convenient to Independent Marketer, provided that Independent Marketer agrees to hold itself reasonably available to render the Services contemplated herein.  Independent Contract Marketer shall devote its best efforts to the performance of the Services and shall protect and promote the interests of BTU. Independent Contract Marketer shall cooperate in any reasonable manner whatsoever with BTU in connection with the performance of the Services. 2. COMPLIANCE WITH LAW:  Independent Marketer’s performance of services under this agreement shall be in compliance with all applicable laws or regulations of the federal, state, and local government. 3. REPUTATION AND GOODWILL:  Independent Marketer shall not disparage, defame, or perform any contracted services in a manner which would be injurious to the reputation and goodwill of BTU. 4. TERM: The term of this Agreement shall commence as of the Effective Date (Acceptance Date) and shall continue for a period of one (1) year ("Initial Term"), and thereafter shall be automatically renewed for successive one-year periods under like terms and conditions ("Renewal Term") unless terminated in accordance with the terms hereof. (The Initial Term and all Renewal Terms, if any, shall hereinafter be referred to collectively as the "Term").

5. INDEPENDENT CONTRACTOR: Independent Marketer represents and warrants that its relationship to BTU and its various parent, subsidiary and affiliated corporations hereunder shall be that of an independent contractor and not an employee of BTU for any purpose whatsoever. Independent Marketer shall have sole control of the manner and means of performing its work, and BTU is interested only in the results Independent Marketer obtains. Independent Marketer does not have, nor shall it hold itself out as having, any right, power or authority to create any contract or obligation, either express or implied, on behalf of, in the name of, or binding upon BTU, its parent, subsidiary or affiliated companies, unless BTU or any of the foregoing companies shall consent thereto in writing.  Independent Marketer agrees that any expenses incurred by Independent Contract Marketer in the process of performing its duties shall be borne solely by the Independent Contract Marketer and will not be compensated by BTU Games.

6. COMPENSATION: a) In consideration of the full and faithful performance by Independent Marketer of all of its obligations hereunder, BTU shall pay Independent Marketer according to the commission scale set forth by BTU on BTUs’ website at the time of releasing compensation.  Independent Marketer agrees that this scale is subject to change at the sole discretion of BTU.  BTU agrees that any changes made to the commission scale will not affect commissions already earned but not disbursed at the time of change.  Such commission amount earned by Independent Marketer shall be made available to Independent Marketer in a timely manner as listed hereunder (“Compensation disbursement”).

b) BTU shall have no responsibility to reimburse Independent Marketer for expenses ("Expenses") actually incurred by Independent Marketer in the performance of the Services hereunder.  The Independent Marketer understands that, being a completely Independent entity, will bear any expenses incurred in the pursuit of its duties. c) Compensation Disbursement:  BTU Games agrees to make reasonable effort to disburse commissions earned by Independent Contract Marketer at quarterly intervals throughout the year should the commissions earned by the Independent Marketer equal or exceed USD $100.00.  Independent Marketer agrees that disbursement of commissions may incur fees that are outside the control of BTU and agrees to bear any such fees or expenses incurred during disbursement out of the commission amount being disbursed.  Independent Contract Marketer can request compensation at any time outside the scheduled disbursements or outside the disbursement minimum, but agrees to pay applicable fees.  Such fees shall be determined by BTU at the time of request. 7. WAIVER OF LIABILITY:  BTU shall not be liable to Independent Marketer on account of any personal injuries or property damage or financial loss sustained by contractor in performance of Services for BTU.  Independent Marketer shall indemnify and hold BTU harmless from all liability for personal injuries or property damage or financial loss directly related to the performance of contracted services. 8. MODIFICATION AND/OR TERMINATION: Either party, in its sole discretion, may terminate this Agreement upon notice to the other party at any time with or without cause, provided that BTU's only remaining obligation hereunder shall be to pay Independent Marketer as applicable then due and accrued but not yet disbursed of performed services.  BTU reserves the right to modify the terms and covenants of the Agreement to create a new Agreement which shall immediately terminate and supersede any prior Agreements.  This Agreement shall be terminated if a new Terms of Service and/or Agreement are created by BTU. Independent Marketer agrees to agree to the new Agreement to continue as Independent Marketer for BTU.

9. OTHER COVENANTS OF INDEPENDENT MARKETER. In order to induce BTU to enter into this

Agreement, Independent Marketer hereby agrees as follows, as of the Effective Date:

(a) CONFIDENTIALITY. Recruiter acknowledges that by reason of its relationship with and service to BTU, it has had and will have access to confidential information relating to operations and technology and know-how which have been developed by TRS and its affiliates, including, without limitation, information and knowledge pertaining to lead productions and performances, public relations and marketing, products and their design and manufacture, methods of operation, sales and profit data, customer and supplier lists and relationships between BTU and its affiliates and their respective customers, suppliers and others who have business dealings with it, other information not readily available to the public, and plans for future developments relating thereto. In recognition of the foregoing, during the Term and at all times Thereafter, Independent Marketer will maintain the confidentiality of all such information and other matters of BTU and its affiliates known to Independent Marketer which are otherwise not in the public domain and will not disclose any such information to any person outside the organization of BTU, wherever located, except as required by law or with BTU Board of Directors' prior written authorization and consent.

(b) RECORDS. All papers, books and records of every kind and description (whether in physical or electronic form) relating to Independent Marketer’s services collected by BTU regarding the duties and sales of Independent Marketer, whether or not prepared by BTU shall be the sole and exclusive property of BTU.  BTU agrees to make reasonable efforts to allow Independent Marketer to view these Records at any time upon request.

(c) NON-COMPETITION. Independent Marketer hereby agrees with BTU that during the Term and for a period of one (1) year following the date of termination or non-renewal, it shall not: (i) provide Services or any other services to any person or entity engaged in the business of lead generation other than BTU or any parent, subsidiary or affiliated company thereof; (ii) actively solicit any employee or agent of BTU or any of its subsidiaries or affiliates to leave the employment or engagement thereof; and (iii) induce or attempt to induce any customer, supplier, licensee or other individual, corporation or other organization having a business relation with BTU or its subsidiaries or affiliates to cease doing business with BTU or its subsidiaries or in any way interfere with the relationship between any such customer, supplier, licensee or other person and BTU or its subsidiaries or affiliates.

(d) WORKS. Independent Marketer hereby acknowledges that all duties performed hereunder were specifically ordered or commissioned by BTU ("Work"); that the Work constitutes and shall constitute a work-made-for-hire as defined in the United States Copyright Act of 1976; that BTU is and shall be the author of said work-made-for-hire and the owner of all rights in and to the Work throughout the universe, in perpetuity and in all languages, for all now known or hereafter existing uses, media and forms, including, without limitation, the copyrights therein and thereto throughout the universe for the initial term and any and all extensions and renewals thereof; and that BTU shall have the right to make such changes therein and such uses thereof as it may deem necessary or desirable. "Works" shall include, but not be limited to all material and information created by Independent Marketer in the course of or as a result of Independent Marketer's engagement with BTU which is fixed in a tangible medium of expression, including, but not limited to, notes, drawings, memoranda, correspondence, documents, records, notebooks, flow charts, computer programs and source and object codes, regardless of the medium in which they are fixed. To the extent that the Work is not recognized as a work-made-for-hire, Independent Marketer hereby assigns, transfers and conveys to BTU, without reservation, all of Independent Marketer's right, title and interest throughout the universe in perpetuity in the Work, including, without limitation, all rights of copyright and copyright renewal in said Work or any part thereof. Independent Marketer will take whatever steps and do whatever acts BTU requests, including, but not limited to, placement of the BTU's proper copyright notice on such Works to secure or aid in securing copyright protection and will assist BTU or its nominees in filing applications to register claims of copyright in such works. Independent Marketer will not reproduce, distribute, display publicly, or perform publicly, alone or in combination with any data processing or network system, any Works of BTU without the written permission from BTU.

(e) ENFORCEMENT. Recruiter agrees and warrants that the covenants contained herein are reasonable and that valid considerations has been and will be received between the parties hereto.

Independent Marketer recognizes that the provisions of this Section 6 are vitally important to the continuing welfare of BTU, and its affiliates, and that money damages constitute a totally inadequate remedy for any violation thereof. Accordingly, in the event of any such violation by Independent Marketer, in addition to any other remedies they may have, BTU and its subsidiaries and affiliates shall have the right to institute and maintain a proceeding to compel specific performance thereof or to issue an injunction restraining any action by Independent Marketer in violation of this agreement.

10. APPROVAL AND CONTROLS: BTU shall have the sole and absolute control, approval and discretion over the design, colors, presentation, depiction and exhibition of BTU's characters and intellectual properties that are created or relate in any way to the Services. Moreover, BTU reserves all rights to the trade names and trademarks and to any other commercial symbols that it may adopt or use that are created or related in any way to the Services.

11. NOTICES: Any notices are to be sent by email.

12. GOVERNING LAW: This Agreement shall be governed by the laws of the State of New York governing contracts entered into and to be fully performed therein.

13. SEVERABILITY: In the event that any provision or portion of this Agreement shall be declared invalid or unenforceable for any reason by a court of competent jurisdiction, such provision or portion shall be considered separate and apart from the remainder of this Agreement, which shall remain in full force and effect.

14. NAME AND LIKENESS: BTU and its licensees and/or assignees shall have the exclusive and perpetual right, but not the obligation, to use and license the use of Independent Marketer’s name, photograph, likeness and other biographical data ("Name and Likeness") for the purpose of advertising, marketing, promoting, publicizing and exploiting any matter related to the Services performed hereunder with Independent Marketer’s permission, which shall not be unreasonably withheld.

15. INDEMNITY:

(a) Recruiter shall hold BTU, its parent, subsidiary and affiliate companies and their respective directors, officers, employees, independent contractors, licensees, successors, assigns and agents of the foregoing, harmless from and against all claims, liabilities, damages, costs and attorneys' fees arising from: (1) any negligent or intentional acts by Independent Marketer; or (2) any breach or alleged breach by Independent Marketer of any representation, warranty or agreement made by Independent Marketer hereunder.

(b) BTU shall hold Independent Marketer harmless from and against all claims, liabilities, damages, costs and attorneys' fees arising solely from (1) any negligent or intentional acts by BTU; or (2) any breach or alleged breach by BTU of any representation, warranty or agreement made by BTU hereunder.

16. REMEDIES: The waiver by either party of any breach hereof shall not be deemed a waiver of any prior or subsequent breach hereof. All remedies of either party shall be cumulative and the pursuit of one remedy shall not be deemed a waiver of any other remedy.

17. INTEGRATION: This Agreement contains the complete understanding existing between the parties on the subjects covered and supersedes any previous written or verbal understandings with respect thereto. This Agreement may be amended at any time, at the sole discretion of BTU at which time Independent Marketer will have to agree to the new Agreement in order to continue as an Independent Marketer.

18. ASSIGNMENT: This Agreement is not assignable or delegable, in whole or in part, by Independent Marketer. BTU may assign this Agreement in whole or in part, without limitation or restriction. This Agreement shall insure to the benefit of BTU, its successors, assignees, licensees and grantees and associated, affiliated and subsidiary companies.

 

This Agreement contains the complete agreement concerning the services of the Independent Marketer for BTU and supersedes all prior agreements or understandings, written or unwritten.