TERMS OF USE AGREEMENT

UPDATED AND EFFECTIVE AS OF: JUNE 1, 2018

PLEASE READ THIS TERMS OF USE AGREEMENT (THIS “AGREEMENT”) CAREFULLY PRIOR TO YOUR USE OF THIS DEVICE, ANY SOFTWARE APPLICATIONS ON THIS DEVICE AND/OR ANY WEBSITE OPERATED BY US (COLLECTIVELY, THE “TABLET PROGRAM”). 

BY USING OR ACCESSING THE TABLET PROGRAM, YOU (“USER”, “YOU”, “YOUR” AND SIMILAR TERMS) ACKNOWLEDGE AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THE OTG PRIVACY POLICY, WHICH IS INCORPORATED HEREIN BY REFERENCE. 

BEFORE PLACING AN ORDER FROM THE TABLET PROGRAM, SCANNING YOUR AIRLINE BOARDING PASS OR OTHERWISE ENTERING OR PROVIDING US ANY PERSONALLY IDENTIFIABLE INFORMATION ON THE TABLET PROGRAM, YOU MUST AGREE TO THE TERMS OF THIS AGREEMENT (INCLUDING THE OTG PRIVACY POLICY) BY CLICKING ON THE “I AGREE” CHECKBOX TO ACKNOWLEDGE YOUR CONSENT TO BE BOUND BY THE TERMS OF THIS AGREEMENT OR OTHERWISE CONSENTING.  IF THIS AGREEMENT IS NOT ACCEPTABLE TO YOU AND YOU ARE UNWILLING TO BE BOUND BY IT, PLEASE DO NOT CLICK ON THE “I AGREE” CHECKBOX, PLACE AN ORDER ON THE TABLET PROGRAM, SCAN YOUR AIRLINE BOARDING PASS OR OTHERWISE ENTER OR PROVIDE ANY PERSONALLY IDENTIFIABLE INFORMATION ON THE TABLET PROGRAM.

OTG Experience, LLC, a Delaware limited liability company (together with its affiliates, “OTG” and also referred to herein as “we”, “us”, “our” and similar terms) is the owner and operator of the Tablet Program and, along with various other third parties, an advertiser, promoter and/or proprietor of various products and services available for purchase on the Tablet Program (collectively, the “Services”).  Without limiting the foregoing, the interior and exterior design of the holdrooms, including the furniture layout and the use of the electronic tablets, is a service mark of OTG.

As used in this Agreement, the terms “you” or “your” refer to you, the user of this device.  The term “user” may refer to you and other users of the device more generally. 

Eligibility and User’s Warranties and Representations.

The Tablet Program is 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 THIS TABLET PROGRAM WITHOUT THE PERMISSION OF YOUR PARENT OR LEGAL GUARDIAN.   

Notice to Users of Age Restricted Products and Services.

Use of the Tablet Program 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 use of consumption of age restricted products in the applicable jurisdiction where this device is located, you are not permitted to use the Tablet Program and the Services for the purpose of obtaining or ordering any such products, and do not have our consent to do so.  Upon request, you will be required to provide a form of government issued identification to our employees or agents that engage with you to deliver any of the Services to you, in order to verify your compliance with any age restrictions.

Use of the Tablet Program for certain contests, games or other services may be restricted to those over the age of majority.  Please review and terms, conditions or rules applicable to any given service carefully. If you are under the age of majority, you may be prohibited from participating in some services offered on the Tablet Program.

Fraud. 

Without limiting any other remedies available to us under applicable law, we may suspend or terminate your use of the Tablet Program if we determine that you have engaged in fraudulent activity in connection with your use of the Tablet Program.

 

Links to Third Party Websites; Prohibition on Certain Third Party Websites.

We may provide links from the Tablet Program to web pages which are not part of the Tablet Program.  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 Tablet Program only as a convenience. The presence of these links on the Tablet Program 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 Tablet Program only provides links.  While using the Tablet Program, you also may have access to, and the ability to browse, other third party websites.  You are expressly prohibited from accessing, browsing or viewing any third party websites that contain lewd or nefarious content or other materials which we, in our sole discretion, deem inappropriate.  Your breach of the foregoing restriction regarding the use of third party websites shall give rise to immediate grounds for the termination of your right to use the Tablet Program and the Services.  Notwithstanding the foregoing, we have the right, but not the obligation, to monitor your use of, and access to, third party websites while using the Tablet Program and the Services and to terminate this Agreement immediately in our sole discretion.

User Information.

User Information” is defined as any information or other material you provide to us or others in connection with your use of the Tablet Program, including your Payment Card (as defined below) information or postings on social media or online forums, if any. Except as otherwise described or provided in our Privacy Policy, (i) you are solely responsible for User Information, and (ii) we act as a passive conduit for the online distribution of User Information. We reserve, however, the right to modify or remove from the Tablet Program, 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 also reserve the right to edit User Information or other materials for any other reason consistent with the purposes of this Agreement or the Tablet Program.

Payment Processing with a Payment Card; Order Fulfillment. 

You will be required to swipe your credit, debit or other payment card on a card reader or provide such other valid electronic payment method as we may permit from time to time (e.g., EMV chip cards and Near Field Communication payments) (as applicable, a “Payment Card”) before placing an order for products or services available for purchase on the Tablet Program.  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 (e.g., by selecting the “Call A Server Button” on the device from which you access the Tablet Program).  We will use commercially reasonable efforts to help you remediate any issues. 

Payments with Rewards Accounts.

If the Tablet Program allows you to connect your airline’s frequent flyer miles or points account or any other loyalty or rewards program account (each, a “Rewards Account”) to the Tablet Program or use a Rewards Account to make purchases of products or services from the Tablet Program, and you choose to connect a Rewards Account to the Tablet Program or use a Rewards Account for any such purpose, you consent to the use of your Rewards Account information in accordance with this Agreement and the privacy policy applicable to any such Rewards Account.  If you choose to use your Rewards Account benefits to make purchases of products or services from the Tablet Program, the Rewards Account miles, points or benefits are deducted from your Rewards Account as soon as a purchase is made.  The stated number of miles, points or benefits charged or deducted from your account as payment for purchases from the Tablet Program will also pay for all applicable sales taxes and other fees unless otherwise specified.  In the event that the Rewards Account miles, points or benefits have not been properly deducted from your account at the time of a purchase, such miles, points or benefits can be deducted by the airline or its affiliate or such other entity that provides or administers the Rewards Account, at any time thereafter.  Purchases of products or services with the Rewards Account can only be made by the owner of the Rewards Account.  The conversion of the Rewards Account miles, points or benefits into a cash amount or the payment of cash to you in connection with the purchase of products or services with the Rewards Account is not possible, even in case of return of items purchased or the termination of Rewards Account membership. All Rewards Account rules apply to your use of the Reward Program benefits on the Tablet Program.

Intellectual Property Rights.

The contents of the Tablet Program are protected by copyright, trademark, trade secret, moral rights and other intellectual property and other rights applicable under the laws of the United States, Canada and other jurisdictions, and are the sole and exclusive property of us and/or other owners. We grant you a limited license and right to access and make personal use of the Services and the Tablet Program, in order to obtain information, order products or services or engage in other activities available through the Tablet Program. This limited right and license does not include any of the following: (i) any rights of resale or commercial use of the Tablet Program 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 rights of derivative use of the Tablet Program or its 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.  Neither the Tablet Program nor its content or any portions thereof may be reproduced, duplicated, copied, sold, resold, visited, modified or otherwise exploited for any commercial purpose without our express written consent or the consent of the owner of such materials. 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 Tablet Program owned by us or any third party without the express written consent of the owner.  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 without the express written consent of the owner.  Any unauthorized use of the Tablet Program terminates the permission and license granted by us.  You may not use any logo or other proprietary graphic or trademark on the Tablet Program without our express written permission. You will not use any device, software or routine to interfere or attempt to interfere with the proper working of the Tablet Program. You will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure.

Using Tablet Program to Create Photos, Videos, and Text.

Certain pages on the Tablet Program may allow you to create or post videos, audio, photographs, text, or other content (“Content”).  The Tablet Program stores such Content.  Unless otherwise specified, you may only use the Tablet Program to create or post Content with the Tablet Program if you are a resident of the United States or Canada and thirteen (13) years of age or older.  You may only post Content to the Tablet Program that you created or that the owner of the Content has given you permission to post.  If Content 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 Content. You may be required to provide proof of such permission to OTG.  You may not create, post, or distribute Content that is illegal or that violates this Agreement.  By creating, posting or distributing Content with the Tablet Program, you represent and warrant that (a) you own all the rights to the Content or are authorized to use and distribute the Content with the Tablet Program and (b) the Content does not and will not infringe any copyright, right of publicity, or any other third-party right nor violate any law or regulation.

By creating, submitting, or posting Content with the Tablet Program, you grant OTG the irrevocable, perpetual, worldwide right to reproduce, display, perform, distribute, adapt, and promote this Content in any medium, and waive any and all moral rights therein in favor of OTG.  Once you create, submit, or post Content using the Tablet Program, OTG does not need to give you any further right to inspect or approve uses of such Content or 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 Content created, submitted, or posted using the Tablet Program. You are solely responsible for anything you may create with or post on the Tablet Program and the consequences of creating or posting anything using the Tablet Program.

Breach. 

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 Tablet Program in whole or in part: (a) if you breach this Agreement; (b) if we are unable to verify or authenticate any information you provide to us, should we elect to engage in such verification; or (c) if we believe in our sole discretion that your actions may cause legal liability for you, other users, us or third parties.

Privacy. 

Our current Privacy Policy is available on the Tablet Program at the following link http://policy.otgmanagement.com/yyz/YYZ_PrivacyPolicy.htm and is incorporated in this Agreement by reference. We may change our Privacy Policy from time to time, as stated therein.

Warranty Disclaimers and Liability Limitations.

EXCEPT AS OTHERWISE PROVIDED IN A WRITTEN AGREEMENT WITH YOU OR AS REQUIRED BY LAW, WE MAKE NO REPRESENTATION OR WARRANTIES WITH RESPECT TO THE OPERATION, FUNCTION, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, APPLICABILITY OR COMPLETENESS OF THE CONTENTS OF THE TABLET PROGRAM 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, OR FITNESS FOR ANY PARTICULAR PURPOSE. IN CONNECTION WITH THE SERVICES OR THE TABLET PROGRAM OR YOUR USE OF SAME. WE DO NOT WARRANT THAT THE TABLET PROGRAM, ITS SERVERS, OR MESSAGES SENT FROM THE TABLET PROGRAM ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

ALLERGY NOTICE:  CONSUMING RAW OR UNDERCOOKED MEATS, POULTRY, SEAFOOD, SHELLFISH OR EGGS MAY INCREASE YOUR RISK FOR FOOD BORNE ILLNESS.   

THERE MAY BE PRODUCTS OR SERVICES OWNED BY THIRD PARTIES THAT ARE SUBJECT TO THE WARRANTIES OF THOSE THIRD PARTIES. YOU ARE DIRECTED TO INVESTIGATE THE AVAILABILITY OF SUCH THIRD PARTY WARRANTIES YOURSELF.   

WE DO NOT WARRANT THE PERFORMANCE, EFFECTIVENESS OR APPLICABILITY OF ANY WEB PAGES TO WHICH LINKS ARE PROVIDED FROM THE TABLET PROGRAM 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.

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 DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR OTHER CONSEQUENTIAL DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM ANY USE OF THE TABLET PROGRAM OR THE SERVICES, ALL OF WHICH ARE PROVIDED “AS IS”, AND WITHOUT WARRANTIES OF ANY KIND.

EXCEPT AS OTHERWISE PROVIDED IN A WRITTEN AGREEMENT WITH YOU OR AS PROHIBITED BY LAW, OUR LIABILITY, AND THE LIABILITY 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 TABLET PROGRAM, IF ANY.

THE LAWS OF SOME JURISDICTIONS 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.

Indemnity.

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 Tablet Program; (vi) your nefarious or other inappropriate use, as determined in our sole discretion, of any third-party websites while accessing the Tablet Program; and (vii) your use of the Tablet Program or the products or services of us or any third party, except for claims resulting solely from our gross negligence or willful misconduct.

Release; Covenant Not To Sue.

  

To the fullest extent permitted by applicable law, you hereby release, agree and covenant not to initiate any proceedings (whether in court or otherwise) or to pursue any controversy or claim against OTG, its subsidiaries and affiliates, and their respective officers, directors, members, owners, agents, employees, suppliers and independent contractors, from or in connection with any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with the Services or your use of the Tablet Program, other than for such party’s gross negligence or willful misconduct. If you are a California resident, you hereby waive California Civil Code §1542, which says: “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.

Notices.

Except as explicitly stated otherwise, any notices shall be given by postal mail to us at the following address:

OTG EXPERIENCE, LLC
c/o OTG MANAGEMENT
1501 Lower State Road, Suite 102
North Wales, PA  19454
Attn:  General Counsel

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 copyright infringement on the Tablet Program, please review and comply with our DMCA Notice, available here or at the following link: http://policy.otgmanagement.com/dmca.html

Arbitration. 

To the fullest extent permitted by applicable law, and 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 Tablet Program 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 you decide to initiate arbitration, OTG agrees to pay the filing fee required by JAMS to initiate your arbitration (up to $250.00) and to pay the costs of the arbitration proceeding.  Each party bears its own costs and expenses related to such arbitration, regardless of which party prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines.  The arbitration award shall be in writing and shall include findings of fact and conclusions of law.  Judgment on the arbitration award may be entered by any court of competent jurisdiction.  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.

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.  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.  This provision is material and essential to the arbitration of any controversy or claim, and is non-severable from this agreement to arbitrate.

Taxes.

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 or other services that you make or use through us or the Tablet Program.

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. 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 confidentiality of arbitration, as set for herein, and each Party hereby irrevocably and unconditionally waives any objection to the laying of venue of any 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. 

Non-waiver.  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.

Severability.   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 except in writing, signed by both parties, or as otherwise provided herein. 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 on the Tablet Program. Please consult this portion of the Tablet Program for important changes to the Agreement as they occur. Unless otherwise provided in a separate written agreement between you and us, by using the Tablet Program after we post any changes to this Agreement on the Tablet Program, 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 Tablet Program or any Services. This Agreement applies to your use of the Tablet Program and other websites or device programs that we may own or operate in the future, unless such websites or device programs provide otherwise.  

Use in the United States and Canada.  The Tablet Program is controlled, operated and intended to be used from within the United States and Canada only. We make no representation that the Tablet Program is appropriate for use outside the United States or Canada, or that access to and use of the Tablet Program in accordance with these Terms of Use complies with the laws of any other jurisdiction.  Those who choose to access or interact with the Tablet Program from outside the United States or Canada do so on their own will and are fully responsible for compliance with applicable laws.

Continuing Cooperation.  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.