UPDATED AND EFFECTIVE AS OF: March 20, 2023
BY CREATING AN ACCOUNT TO ACCESS ANY WEBSITE, MOBILE APP, WEB-BASED APPLICATION, KIOSK OR MOBILE DEVICE PROVIDED BY OTG EXPERIENCE, LLC THAT LINKS TO THIS AGREEMENT (COLLECTIVELY, THE “PROGRAMS”), YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THE OTG PRIVACY NOTICE, WHICH IS INCORPORATED HEREIN BY REFERENCE. IF THIS AGREEMENT IS NOT ACCEPTABLE TO YOU AND YOU ARE UNWILLING TO BE BOUND BY IT, YOU MAY NOT USE THE PROGRAMS.
OTG Experience, LLC, a Delaware limited liability company (together with its affiliates, “OTG”), is the owner and operator of the Programs and, along with various other third parties, an advertiser, promoter, and/or proprietor of various products and services available for use or purchase by use of the Programs (collectively, the “Services”).
As used in this Agreement, the terms “user,” “you,” “your” or similar terms refer to you, the user of the Programs. The term “user” may also refer to other users of the Programs more generally. As used in this Agreement, the terms “we”, “us”, “our” and similar terms refer to OTG.
YOU ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT LIMITS OUR LIABILITY AND THAT YOU ARE RELEASING US FROM VARIOUS CLAIMS IN THE DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY SECTIONS BELOW. THIS AGREEMENT ALSO CONTAINS A BINDING ARBITRATION PROVISION IN THE ARBITRATION SECTION BELOW THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT WITH RESPECT TO THE PROGRAMS AND SERVICES.
Eligibility and User’s Warranties and Representations.
The Programs are directed toward and designed for use by persons aged thirteen (13) years or older. IF YOU ARE UNDER THE AGE OF THIRTEEN (13), YOU CANNOT USE THE PROGRAMS.
Notice to Users of Age Restricted Products and Services
Use of the Programs and the Services to order certain age restricted products, such as alcoholic beverages or lottery or other gaming products or services is strictly limited to those Users who are of legal age to do so. If you are under the legal age for purchase, use or consumption of age restricted products in the jurisdiction of delivery, you are not permitted to use the Programs or the Services for the purpose of obtaining or ordering any such products. Upon request, you will be required to provide a form of government issued identification to our employees or agents that engage with you in order to verify your compliance with any age restrictions.
Use in the United States and Canada.
The Programs are controlled, operated, and intended to be used from within the United States and Canada. We make no representation that the Programs are appropriate for use outside the United States or Canada, or that access to and use of the Programs in accordance with this Agreement complies with the laws of any other jurisdiction. Those who choose to access or interact with the Programs from outside the United States or Canada do so on their own will and are fully responsible for compliance with applicable laws.
Using the Programs.
You must follow any policies made available to you within the Programs. You may not misuse our Programs. You may not interfere with our Programs, try to access them using a method other than the interface and the instructions that we provide, or extensively or automatically copy any content from the Programs (in other words, no scraping). You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the Programs.
Without limiting other rights or remedies set forth in this Agreement or as otherwise available by law, we may immediately issue a warning, temporarily suspend, indefinitely suspend, or terminate your access to the Programs in whole or in part if you do not comply with our terms or policies, including this Agreement. We may also suspend or stop providing our Programs to you if (a) we are unable to verify or authenticate any information you provide to us, should we elect to engage in such verification, (b) we are investigating suspected misconduct, or (c) we believe in our sole discretion that your actions may cause legal liability for you, other users, us, or third parties.
Services, Functionality and Content.
We are constantly changing and improving our Programs. We may add or remove functionalities or features, and we may suspend or stop a Service altogether, at any time, without any notice or liability. You can stop using our Programs at any time, although we will be sorry to see you go. We may also stop providing Programs to you, or add or create new limits to our Programs, at any time.
Using our Programs does not give you ownership of any intellectual property rights in our Programs or the content you access through them (“Content”). You may not use Content, except as permitted in this Agreement, by its owner, or as otherwise permitted by law. These Terms do not grant you the right to use any branding or logos used in our Programs, including the OTG name and logo. You may not remove, obscure, or alter any legal notices displayed in or along with our Programs.
Our Programs display some Content that is not our own. For example, Content includes information belonging to our advertisers, other third parties, or other users (collectively, “Third Party Content”) and User Information. We are not responsible for, and you waive all of our liability with respect to, Third Party Content or User Information. Content is the sole responsibility of the individual or entity that makes it available to you via the Programs.
Notices and Announcements.
In connection with your use of the Programs, we may send you service announcements, administrative messages, and other information. You may opt out of our marketing emails by clicking on the “unsubscribe” link in marketing e-mails or texting “Stop” or “Do Not Send” in response to text messages. Please be aware that there may be a brief period before we are able to process your opt-out.
Some of our Programs are available on mobile devices or may utilize SMS/iMessage, which may cause you to incur SMS or data charges with your wireless provider. Please be aware that we have no control over these charges, and if you do not wish to be charged, you should stop using the mobile or SMS/iMessage features (as applicable).
Links to Third Party Websites; Prohibition on Certain Third-Party Websites.
We may provide links from the Programs to web pages which are not part of the Programs. These web pages are not under our control and we are not responsible for the information or links to other web pages you may find there. We are providing the links from the Programs only as a convenience. The presence of these links is not intended to imply our endorsement of the other web pages but to provide a convenient link to the web pages managed by other organizations, companies, or individuals. Accordingly, this Agreement does not apply to your use of web pages to which the Programs only provide links. While using the Programs on OTG-provided devices, you also may have access to, and the ability to browse, other third-party websites. We have the right, but not the obligation, to monitor your use of, and access to, third party websites while using OTG-provided devices.
“User Information” is defined as any information or other material that we collect from you or that you provide to us or others in connection with your use of the Programs, including your Payment Card (as defined below) or contact information, or postings on OTG social media accounts or online forums, if any. We reserve the right to modify or remove from the Programs, all or any portion of User Information or other material that we, in our sole discretion, consider infringing, offensive, abusive, defamatory, obscene, or otherwise unacceptable or unlawful. We do not generally review User Information prior to making it available on the Programs, and we are not obligated to do so.
Using Programs to Create Photos, Videos, and Text.
User Information includes videos, audio, photographs, text, or other content that you create on or upload to the Programs. The Programs may store such User Information. Unless otherwise specified, you may only use the Programs to create or post User Information if you are thirteen (13) years of age or older. You may only post User Information to the Programs that you created or that the owner of the User Information has given you permission to post. If User Information depicts any person other than yourself, you must have permission from that person or, if that person is a minor, permission from that person’s parent or legal guardian, before you post the User Information. You may be required to provide proof of such permission to OTG. By creating, posting or distributing User Information with or to any of the Programs, you represent and warrant that: (a) you own all the rights to the User Information or are authorized to use and distribute the User Information; and (b) the User Information does not and will not infringe any copyright, right of publicity, or any other third-party right nor violate any law or regulation.
You agree that you will not submit User Information that (i) violates any law or a third-party’s rights; (ii) is excessive in volume or contains unsolicited commercial messages or spams any users; (iii) contains malicious content or viruses; (iv) solicits other people’s login information, credit card numbers, or other sensitive information; (v) harasses or bullies other users; or (vi) is hate speech, threatening or pornographic, that incites violence or that contains nudity or graphic or gratuitous violence.
By creating, submitting, or posting User Information with or to any of the Programs, you grant OTG and its affiliates the irrevocable, perpetual, worldwide, royalty-free right to use, host, store, reproduce, publicly display, publicly perform, communicate, publish, distribute, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that Your Content works better with our Programs), and promote this User Information in any medium. Once you create, submit, or post User Information using the Programs, OTG does not need to compensate you for any such uses. OTG owns all right, title, and interest in any compilation, collective work, or other derivative work created by OTG using or incorporating User Information created, submitted, or posted using the Programs. You are solely responsible for any User Information you may create with or post to any of the Programs and the consequences of creating or posting anything using the Programs.
You may need an account in order to use the Programs. You agree that all registration information you give us will be accurate and current. You will timely notify us of any changes to any of the foregoing information. You are responsible for controlling access to any PCs, mobile devices, or other end points that you allow to store your Programs password, or on which you enable a “Remember Me” or similar functionality (“Activated Device”). Accordingly, you agree that you will be solely responsible for all activities that occur under your Programs accounts, including the activities of any individual with whom you share your Programs account or an Activated Device.
To protect your account, keep your password confidential. You are responsible for the activity that happens on or through your account. If you learn of any unauthorized use of your password, please contact us at email@example.com.
Payment Processing with a Payment Card; Order Fulfillment.
You will be required to provide a valid electronic payment method from available options (a “Payment Card”) before placing an order for products or services available for purchase by use of the Programs. Your Payment Card will be charged for your purchase immediately after you click “Submit” or otherwise authorize the purchase and allow us to process your order. In the event that an improper amount is charged to your Payment Card or if you have any other payment issues, you may contact us at the address below or by other means available to you. We will use commercially reasonable efforts to help you remediate any issues.
Payments with Rewards Accounts.
We reserve the right to limit or reject the issuance of refunds requested more than 7 days after the transaction date.
See our PRIVACY NOTICE for additional terms related to User Information, accounts (including Rewards Accounts) and payments, which is available at the following link https://flo.io/accounts/legal/privacy-notice and is incorporated in this Agreement by reference. We may change our Privacy Notice from time to time, as stated therein.
You may be required to download software (such as a mobile app) to use the Programs or certain features of the Programs, and the Programs may enable you to access software running on our devices or our (or our vendors’) servers (collectively, “Software”). Certain Software may update automatically on your device once a new version or feature is available, and you consent to such automatic updating. There may be software programs contained within certain Software that have been licensed to us by third parties. The term “Software” as used herein shall include this third-party software except where the term “Software” is used solely in the context of our ownership. The same terms and conditions, including all limitations and restrictions, set forth in this Agreement apply to each third-party software program contained in the Software. You acknowledge and agree that any third-party components are owned by their applicable licensors. We do not make any representations or warranties about the operation or availability of such third-party software. Neither we, nor our licensors, shall be liable for any unavailability or removal of such third-party software. We are not responsible for any communications to or from such licensors, or for the collection or use of information by such licensors. You consent to the communications enabled and/or performed by such third-party software, including automatic updating of the third-party software without further notice. You agree that such third-party software licensors are intended third-party beneficiaries under this Agreement.
Intellectual Property Rights.
You agree that we retain the ownership of all rights, title, and interest in and to the Programs, Software and Content. We grant you a limited personal, non-commercial, non-assignable, and non-exclusive license and right to access and make personal use of the Programs (and Services), Software and Content in the manner permitted by this Agreement. This limited right and license does not include any of the following: (i) any rights of resale or commercial use of the Programs or its contents or the Services; (ii) any right to collect and/or use of any Services descriptions, properties, or prices for commercial use; (iii) any right to create derivative works of the Programs or their contents; (iv) any right to download or copy account or other information for the benefit of any third party; or (v) any use of data mining, scraping, robots, spiders, crawlers, or similar data gathering and extraction tools. You may not reverse engineer or attempt to extract the source code of the Programs or Software, unless laws prohibit those restrictions. None of the Programs, Software or the Content, or any portions thereof, may be reproduced, duplicated, copied, sold, resold, modified or otherwise exploited for any commercial purpose without our prior express written consent. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information or materials (including images, text, page layout, or form) on the Programs owned by us or any third party. You may not use any meta tags or any other “hidden text” utilizing names or trademarks that are owned by us or any other third parties. Any unauthorized use of the Programs terminates the permission and license granted by us.
You agree that in addition to this Agreement, your use of any mobile app that is part of the Programs is subject to the usage rules set forth in (i) Apple’s App Store terms of service, if you download our app from the App Store, (ii) in Google’s Play terms of service, if you download the app from Google Play, or (iii) any other third party platform, developer or distributor end-user license agreement and/or terms and conditions by which you agree to be bound when you download our mobile app or otherwise access the Programs.
Apple Specific Terms. Without limiting the generality of the foregoing, if you downloaded our mobile app from Apple’s App Store or are using apps on an Apple device provided by OTG, you and OTG acknowledge and agree to the following: This agreement is concluded between you and OTG only, and not with Apple Inc. (“Apple”). The mobile app(s) downloaded from Apple may only be used on Apple hardware products. OTG, not Apple, is solely responsible for the app(s) and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the app(s). To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the app(s), and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be OTG’s sole responsibility. OTG, not Apple, is responsible for addressing any claims by you or any third party relating to the app(s) or your possession and/or use of the app(s), including, but not limited to: (i) product liability claims; (ii) any claim that the app(s) fail(s) to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. In the event of any third-party claim that the app(s) or your possession or use of the app(s) infringes that third party’s intellectual property rights, Apple will have no responsibility for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. Apple, and Apple’s subsidiaries, are third party beneficiaries of this agreement, and upon your acceptance of the terms and conditions of the agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the agreement against you as a third-party beneficiary thereof.
Disclaimer of Warranties.
EXCEPT AS OTHERWISE PROVIDED IN A WRITTEN AGREEMENT WITH YOU OR AS REQUIRED BY LAW, THE PROGRAMS, SERVICES AND CONTENT ARE PROVIDED AS-IS AND WE MAKE NO REPRESENTATION OR WARRANTIES IN CONNECTION THEREWITH, INCLUDING WITH RESPECT TO THE OPERATION, AVAILABILITY, FUNCTION, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, APPLICABILITY, COMPLETENESS OF THE CONTENTS, THE PROGRAMS OR THE SERVICES.
EXCEPT AS OTHERWISE PROVIDED IN A WRITTEN AGREEMENT WITH YOU OR AS REQUIRED BY LAW, WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES (EXPRESS OR IMPLIED) INCLUDING BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT IN CONNECTION WITH THE CONTENT, THE SERVICES, OR THE PROGRAMS OR YOUR USE OF SAME. WE DO NOT WARRANT THAT THE PROGRAMs, THEIR SERVERS, OR CONTENT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR ARE ERROR-FREE.
THERE MAY BE PRODUCTS OR SERVICES OWNED OR PROVIDED BY THIRD PARTIES THAT ARE SUBJECT TO THE WARRANTIES OF THOSE THIRD PARTIES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE ARE NOT RESPONSIBLE FOR SUCH THIRD PARTY PRODUCTS OR SERVICES.
WE DO NOT WARRANT THE PERFORMANCE, EFFECTIVENESS OR APPLICABILITY OF ANY WEB PAGES TO WHICH LINKS ARE PROVIDED FROM THE PROGRAMS OR AS A RESULT OF THE USE OF THE SERVICES. ALL LINKS ARE FOR YOUR CONVENIENCE ONLY AND ARE NOT WARRANTED FOR CONTENT, ACCURACY, OR ANY OTHER IMPLIED OR EXPLICIT PURPOSE.
YOU AND YOUR HEIRS, SUCCESSORS, AND ASSIGNS HEREBY FOREVER IRREVOCABLY RELEASE, DISCHARGE, AND HOLD HARMLESS US, OUR AFFILIATES, AND OUR AND THEIR SUCCESSORS AND ASSIGNS, AND OUR AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS (COLLECTIVELY, “RELEASED PARTIES”) FROM, AND AGREE NOT TO SUE ANY RELEASED PARTY FOR, ANY LIABILITIES, CLAIMS, OBLIGATIONS, SUITS, ACTIONS, DEMANDS, EXPENSES, AND DAMAGES WHATSOEVER (COLLECTIVELY, “LIABILITIES”) THAT YOU MAY HAVE AGAINST ANY RELEASED PARTY WHETHER EXISTING NOW OR IN THE FUTURE, WHETHER KNOWN OR UNKNOWN, ARISING OUT OF OR IN CONNECTION WITH YOUR OR A THIRD PARTY’S CONDUCT RELATED TO USE OF THE SERVICES. YOU UNDERSTAND AND ACKNOWLEDGE THAT THE FOREGOING SENTENCE RELEASES AND DISCHARGES ALL LIABILITIES, WHETHER OR NOT THEY ARE CURRENTLY KNOWN TO YOU, AND YOU WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542. YOU UNDERSTAND THE MEANING OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” BY AGREEING TO THESE TERMS AND THIS WAIVER, YOU ASSUME ALL RISK ARISING FROM YET UNKNOWN CLAIMS.
Limitation of Liability.
EXCEPT AS OTHERWISE PROVIDED IN A WRITTEN AGREEMENT WITH YOU OR AS PROHIBITED BY LAW, IN NO EVENT SHALL WE BE HELD LIABLE TO YOU OR ANY OTHER PARTY FOR ANY EXEMPLARY, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR OTHER CONSEQUENTIAL DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM ANY USE OF THE PROGRAMS OR THE SERVICES.
EXCEPT AS OTHERWISE PROVIDED IN A WRITTEN AGREEMENT WITH YOU OR AS PROHIBITED BY LAW, OUR LIABILITY, AND THE LIABILITY UNDER THIS AGREEMENT OR RELATING TO YOUR USE OF THE PROGRAMS OR SERVICES OF OUR AFFILIATES, OR ANY OF OUR OR THEIR OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AGENTS, CONTRACTORS OR SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE PURCHASE PRICE PAID BY YOU FOR USE OF THE PROGRAMS.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES OR LIABILITIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
ADDITIONALLY, WE HAVE NO LIABILITY FOR ANY DEFECT OR IMPURITY IN PRODUCTS AVAILABLE THROUGH THE PROGRAMS OR SERVICES, OR FOR THE SAFETY OF SUCH PRODUCTS, OR FOR THEIR FAILURE TO ARRIVE OR TO BE IN STOCK.
IN ALL CASES RELATING TO PROVIDING YOU THE PROGRAMS AND SERVICES, OTG (AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) AND ITS LICENSORS, SUPPLIERS, ADVERTISERS, AND DISTRIBUTORS, WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE OR THAT IS DUE TO EVENTS OUTSIDE OF OUR REASONABLE CONTROL, SUCH AS WARS, ACTS OF TERROR, CIVIL DISTURBANCES, CRIMINAL ACTIVITIES, WEATHER, STORMS, DELAYS (INCLUDING, BUT NOT LIMITED TO, DELAYS DELIVERING PRODUCTS, DELAYS CAUSED BY AIRPORT SECURITY RESTRICTIONS OR DISRUPTIONS TO AIRPORT OPERATIONS, OR FAILURES OR DELAYS OF COMMON CARRIERS), PUBLIC HEALTH EMERGENCY, NATURAL DISASTERS, ACTS OF GOVERNMENT, SUPPLY INTERRUPTIONS, OR TELECOMMUNICATION OR INTERNET FAILURES.
You agree to indemnify, defend, and hold OTG, its subsidiaries and affiliates, and each of their respective officers, directors, members, agents, owners, employees, independent contractors, and suppliers, harmless from any claim, demand, action, cost and expense, including reasonable attorneys’ fees, due to or arising out of the following events: (i) your giving us any information which is inaccurate; (ii) your breach of any warranty, representation, or other obligation set forth in this Agreement; (iii) your negligence or willful misconduct; (iv) your violation of any law, regulation or right of any third party; (v) any dispute or action between you and any third party, including parties selling goods or services through the Programs; (vi) your nefarious or other inappropriate use, as determined in our sole discretion, of any third-party websites while accessing the Programs; and (vii) your use of the Programs, the Services, or the products or services of us or any third party, except for claims resulting solely from our gross negligence or willful misconduct.
Except as explicitly stated otherwise, any notices shall be given by postal mail or email to us at the following address:
- OTG Experience, LLC
- c/o OTG Management
- 1501 Lower State Road, Suite 102
- North Wales, PA firstname.lastname@example.org
and to you at the email address you provide to us. Notice shall be deemed given 24 hours after email is sent, unless we are notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided by you. In such case, notice shall be deemed given three days after the date of mailing. If you have any issues regarding the infringement of copyrighted material appearing in any of the Programs, please review and comply with our DMCA Notice, available here or at the following link: http://policy.otgmanagement.com/dmca.html
Except as otherwise provided in a written agreement with you, any controversy or claim, whether based in contract, tort, statute, regulation or otherwise, between you and us or our subsidiaries and affiliates, and our or their officers, directors and employees, arising out of or relating to this Agreement or your use of the Programs or the Services, shall be adjudicated by binding arbitration, before a single arbitrator, in accordance with the Comprehensive Arbitration Rules & Procedures of JAMS (or any successor of that organization in effect at the time the arbitration is initiated) which shall administer the arbitration.
If your claim seeks more than $75,000 in the aggregate, the payment of the JAMS fees and costs will be governed by the JAMS Rules. If your claims seek less than $75,000 in the aggregate, the payment of the JAMS fees and costs will be OTG’s responsibility. However, if the arbitrator finds that your claim was frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), the payment of the JAMS’s fees and costs shall be governed by the JAMS Rules and you shall reimburse OTG for all fees and costs that were your obligation to pay under the JAMS Rules. You may hire an attorney to represent you in arbitration. You are responsible for your attorneys’ fees and additional costs and may only recover your attorneys’ fees and costs in the arbitration to the extent that you could in court if the arbitration is decided in your favor. Notwithstanding anything in this arbitration provision to the contrary, OTG will pay all fees and costs that it is required by law to pay.
The arbitration award shall be in writing and shall include findings of fact and conclusions of law. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information. The arbitrator shall issue a reasoned written decision that explains the arbitrator’s essential findings and conclusions. The arbitrator’s award may be entered in any court having jurisdiction over the parties only if necessary for purposes of enforcing the arbitrator’s award. An arbitrator’s award that has been fully satisfied shall not be entered in any court. Either party may seek any interim or preliminary relief from a court of competent jurisdiction necessary to protect the rights or property of either party pending the completion of arbitration. The parties hereby agree the arbitration will be held at the JAMS office closest to where you live or work, New York, New York, or any other location where we agree to hold the arbitration. The parties agree that all arbitration proceedings hereunder shall be kept confidential and, except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all parties, except as required to seek enforcement of this arbitration provision or an arbitration award in a court of competent jurisdiction.
This section is deemed to be a written agreement to arbitrate pursuant to the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16. You and OTG agree that this section is intended to satisfy the writing requirement of the FAA. The FAA will apply even though this agreement provides that it is governed by the law of New York. EXCEPT AS PROVIDED IN THIS ARBITRATION PROVISION, YOU HEREBY WAIVE THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT AND OTHER RIGHTS THAT YOU WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. You hereby acknowledge that you have read and understood the implications of this provision.
NO CLASS ACTIONS. To the fullest extent permitted by applicable law, any controversy or claim will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or proceedings that involve any claim or controversy by you or any other person or party. You and OTG expressly intend and irrevocably and voluntarily agree that each will not assert a class action or representative action against the other in arbitration, in court or otherwise. You further agree that you do not have the right to act as a class representative or participate as a member of a class of claimants with respect to any controversy or claim filed in either court or submitted to arbitration. The arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that individual party’s claim. The arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. This provision is material and essential to the arbitration of any controversy or claim and is non-severable from this agreement to arbitrate.
If any part of No Class Actions section of this arbitration provision is found to be illegal or unenforceable, the entire arbitration provision will be unenforceable and the dispute will be decided by a court. WHETHER IN COURT OR IN ARBITRATION, YOU AND OTG AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY TO THE FULLEST EXTENT ALLOWED BY LAW. If any other clause in this arbitration provision is found to be illegal or unenforceable, that clause will be severed from this arbitration provision and the remainder of this arbitration provision will be given full force and effect. This arbitration provision will survive the termination or expiration of this Agreement.
Except as otherwise provided in a written agreement with you or as prohibited by law, you are responsible for paying any taxes that may be assessed or otherwise due in connection with any transactions or purchases that you make through us or the Programs.
Choice of Law; Venue.
Except as otherwise provided in a written agreement with you or as prohibited by law, this Agreement and all questions of interpretation, construction and enforcement hereof, and all controversies arising hereunder, shall be governed by and construed in accordance with the applicable laws of the State of New York (without regard to principles of conflicts of law other than Section 5-1401 of New York’s General Obligations Law). The parties further agree that this Agreement shall be deemed to have been negotiated, entered into, executed and performed for all purposes within the State of New York. Except as expressly provided in this Agreement the state and federal courts in New York, New York shall serve as the exclusive jurisdiction for any and all claims for interim or preliminary relief, as well as to enforce the arbitration and confidentiality provisions of this Agreement, and each Party hereby irrevocably and unconditionally waives any objection to the laying of venue of any such action, suit or proceeding arising out of or in any way related to this Agreement, in the state and federal courts located in New York, New York, and hereby further irrevocably and unconditionally waives its right and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.
Either party’s failure to act with respect to a breach does not waive the non-breaching party’s right to act with respect to subsequent or similar breaches.
The parties agree to execute any documents or perform such other and further acts as are reasonably necessary to comply with the letter and spirit of this Agreement.
The Intellectual Property Rights, Privacy, Third-Party Terms, Disclaimer of Warranties, Limitation of Liability, Indemnity, Notices, Arbitration, Choice of Law; Venue, Entire Agreement; Amendment, Continuing Cooperation, and Survival sections will survive the termination or expiration of this Agreement.
The invalidity of any portion of this Agreement will not affect the validity of any other provision and any such finding of invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. In the event that any provision of this Agreement is held to be invalid or unenforceable, the parties agree that the remaining provisions will be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision. It is expressly understood, however, that the parties hereto intend each and every provision of this Agreement to be valid and enforceable and hereby knowingly waive all rights to object to any provision of this Agreement to the full extent permitted by law. Accordingly, if any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision(s) will, rather than be stricken in their entirety, be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect.
Entire Agreement; Amendment.
This Agreement contains the entire agreement of the parties relating to its subject matter and supersedes any prior or contemporaneous agreements, negotiations, correspondence, understandings or communications, whether oral or written. This Agreement may not be modified or amended by you. Because of changes in Internet technology and practices, this Agreement and our security and other policies may change from time to time. We will post any changes to this Agreement in, on or via the Programs. Please consult this Agreement for important changes as they occur. Unless otherwise provided in a separate written agreement between you and us, by using the Programs after we post any changes to this Agreement, you agree to accept those changes, whether or not you have reviewed them, and such acceptance shall be deemed legally conclusive. If at any time you choose not to accept the terms of this Agreement, you are not permitted to and should not use the Programs or any Services. This Agreement applies to your use of the Programs and other similar programs that we may own or operate in the future, unless such other programs provide otherwise.
If you have a copyright infringement claim regarding any materials displayed within posted on any of the Programs, you are directed to file a copyright infringement notice with us by sending a written communication that includes substantially the following information (please consult your attorney or review § 512(c)(3) of the United States Copyright Act to confirm the accuracy of these requirements):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online website are covered by a single notification, a representative list of such works at that website.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material.
- Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Such written notice should be sent to our designated agent as follows:
- DMCA Complaints
- OTG Experience, LLC
- c/o OTG Management
- 1501 Lower State Road, Suite 102
- North Wales, PA email@example.com
Please also note that under § 512(f) of the United States Copyright Act, any person who knowingly makes a material misrepresentation that activities or materials are infringing a copyright may be subject to liability.
If you elect to send us a counter-notice, to be effective it must be a written communication provided to our designated agent that includes substantially the following (please consult your attorney or review § 512(g)(3) of the United States Copyright Act to confirm the accuracy of these requirements):
- A physical or electronic signature of the user.
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
- A statement under penalty of perjury that the user has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
- The user’s name, address, and telephone number, and a statement that the user consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the user’s address is outside of the United States, for any judicial district in which we may be found, and that the user will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
Such written notice should be sent to our designated agent as follows:
- OTG EXPERIENCE, LLC
- c/o OTG MANAGEMENT
- 1501 Lower State Road, Suite 102
- North Wales, PA 19454
Please note that under Section 512(f) of the Copyright Act, any person who knowingly makes a material misrepresentation that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
Please also be advised that it is our policy to terminate users’ access to and use of the Programs in appropriate circumstances, where such users are repeat copyright infringers.