Terms and Conditions

Welcome to OTAir.com ("Site"). OTAir LLC ("OTAir") and its affiliates provide this Site and various OTAir mobile marketing and media services ("Services") to you subject to the following terms and conditions ("Terms and Conditions"). Please read these Terms and Conditions carefully before using this Site or the Services.

OTAir may amend the Terms and Conditions, with or without notice. If the Terms and Conditions change, we will post the revised Terms and Conditions and a notice of revision on the Site and may distribute a notice via email, as well. We encourage you to review the Terms and Conditions when such changes occur.

BY USING OUR SITE OR OUR SERVICES, YOU SIGNIFY YOUR CONSENT TO THESE TERMS AND CONDITIONS WITHOUT ANY AMENDMENT OR CHANGE. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, PLEASE DO NOT USE OUR SITE OR OUR SERVICES. YOUR CONTINUED USE OF OUR SITE OR OUR SERVICES FOLLOWING THE POSTING OF ANY CHANGES TO THE TERMS AND CONDITIONS SIGNIFIES YOUR AGREEMENT TO AND ACCEPTANCE OF SUCH CHANGES.

Children Under the Age of 13 OTAir is concerned about the safety and privacy of all its users, particularly children. For this reason, children under the age of 13 may not use this Site or our Services unless their parent creates a user account on their behalf.

IF YOU ARE UNDER THE AGE OF 13, PLEASE ASK YOUR PARENT TO CREATE A USER ACCOUNT FOR YOU.

If you are a parent who wishes to allow your child under the age of 13 to use the Site and Services, you certify that you are at least 18 years old and that you are the legal guardian of the child identified on the user account. By creating a user account for your child, you give your child permission to use and access directed marketing messages and other communications from various advertisers as well as links to the advertiser's Sites ("Advertiser Content," as further defined below). Please remember that the Services are designed to appeal to a broad audience. Accordingly, as the legal guardian, it is your responsibility to determine whether the Services and Advertiser Content are appropriate for your child.

Services Provided OTAir has developed and owns a proprietary mobile messaging and media marketing system that can link a text message received from a cellular telephone or other mobile communication device to a directed marketing message and/or advertisement that can be accessed by the end user either online or using the short message service capability of certain wireless networks (the "System").

Upon your request, initiated by you sending a text message with an advertiser's keyword, OTAir will provide you with the directed marketing messages and other communications from such advertiser, and in some cases, a link to the advertiser's website (collectively, "Advertiser Content"). Additionally, OTAir will provide you with a user account, in which you can store and access such Advertiser Content at a later date. OTAir does not control the Advertiser Content housed on third-party sites and, as such, does not in any way guarantee or make any representations or warranties regarding the accuracy, integrity or quality of such Advertiser Content. You understand that by using the Service, you may be exposed to Advertiser Content that is offensive, indecent or objectionable. Under no circumstances will OTAir be liable in any way for any Advertiser Content, including, but not limited to, any errors or omissions in any Advertiser Content or for any loss or damage of any kind incurred as a result of the use of or reliance on any Advertiser Content.

OTAir reserves the right to establish general practices and limits concerning the Services and user accounts at any time (and may modify such practices and limits at its sole discretion), including without limitation the duration that the Advertiser Content will be retained in your account and the maximum amount of disk space that will be allocated on OTAir's servers on your behalf. Without limiting the foregoing, you agree that OTAir shall have no responsibility or liability for the deletion or failure to deliver or store any Advertiser Content, regardless of whether such deletion or failure was due to the established practices or limits of the Services or as a result of error, intentional misconduct, or negligence of OTAir. You acknowledge that OTAir reserves the right to eliminate user accounts that are inactive for an extended period of time and reserves the right at any time to modify, suspend or discontinue, either temporarily or permanently, the Services, in part or in whole, with or without notice. You agree that OTAir shall not be liable to you or to any third party for any such modification, suspension or discontinuance of the Services.

You agree that the Service may include certain communications from OTAir, such as service announcements and administrative messages, and that these communications are considered part of OTAir membership and you may not be able to opt out of receiving them. Unless explicitly stated otherwise, any new features that augment or enhance the current Service, shall be subject to these Terms and Conditions.

You are responsible for obtaining access to the Service and that access may involve third party fees (such as internet service provider, airtime or content charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the Service.

You acknowledge that OTAir may or may not pre-screen content, but that OTAir and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or move any content that is available via the Service. Without limiting the foregoing, OTAir and its designees shall have the right to remove any content that violates these Terms and Conditions or is otherwise objectionable, in their sole discretion.

You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

You understand that the Service and software embodied within the Service may include security components that permit digital materials to be protected, and use of these materials is subject to usage rules set by OTAir and/or content providers who provide content to the Service. You may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited.

Your Obligations In exchange for receiving the Services, you agree that you will not:

  1. illegally copy, store, use, alter, modify, impair, interfere with or attempt to interfere with, or distribute the Services, the Advertiser Content, or any other data or information provided on the Site or pursuant to the Services;
  2. alter, damage, destroy, erase, interfere with or attempt to interfere with, or infect our files, data and other computer systems and network resources or those of other users or any other person, or access, copy, modify, remove or impair the reliability, security or operation of, any data or files or other information stored in these systems or network resources;
  3. upload, post, email, transmit or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; harm minors in any way;
  4. upload, post, email, transmit or otherwise make available any content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
  5. upload, post, email, transmit or otherwise make available any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
  6. impair the electronic communications to or from, or interfere with or obstruct the lawful use of, or otherwise cause any unauthorized computer functions to our computer systems or those of other users or any other person; or
  7. engage in any practice or conduct that is unlawful under any laws applicable to you.

Additionally, you are responsible for maintaining the confidentiality of your log-in and password, and are fully responsible for all activities that occur under your log-in and password. Without limiting the foregoing, you must immediately notify OTAir of any unauthorized use of your password or account or any other known or suspected breach of security with respect to the Services.

Proprietary Material All material contained on this Site is owned by OTAir or otherwise licensed to OTAir or published by OTAir with permission of the owner. All rights (including without limitation all intellectual property rights) in such material as well as the design and layout of the Site are reserved to the respective owners. No material contained on this Site may be copied, modified, published, broadcast, or otherwise distributed without the prior written permission of OTAir.

Trademarks The OTAir logo, TXTtag, and the terms "TXTtag," "TXTmark," "TXTpak," "TXTcast," "TXTmarking," and "See It. Like IT. TXTmark It." are registered or unregistered trademarks and service marks of OTAir LLC ("OTAir Marks"). OTAir grants advertisers using the Services permission to use the OTAir marks on billboards, radio, TV, posters, brochures, real estate sign riders, and other marketing campaigns in accordance with specifications provided by OTAir below. All other uses not associated with the Services are expressly prohibited without the prior written approval of OTAir.

Print, TV, Web Use the following color or monochrome logos and TXTtags. Use an image editor to add your keyword in the designated location using an Arial Black or Avant Garde font. The keyword should be black in color. The logo can be resized as needed as long as legibility and proportional sizing are maintained. When using the color version, the colors of the TXTtag shall not be altered.

An alternative to the TXTtag when space is limited is to use the following statement: "For more info text [keyword] to 68247 (OTAIR)." If not applicable, "more info" should be replaced with whatever is being offered to the mobile user, such as "coupon", "free sample", "trailer", "text reminder", "ringtone", "wallpaper", "screensaver", etc. If a premium content fee is associated with the user's submission of the text message or subscription or purchase of content, such fee must be clearly stated in the local currency along with the applicable duration for the fee, if a subscription.

The following statement must be included in minimal, but reasonably legible font on the same material on which the TXTtag appears: "Standard carrier message rates may apply."

Radio The following must be stated: "For more info text [keyword] to 68247. Standard carrier message rates may apply." If not applicable, "more info" should be replaced with whatever is being offered to the mobile user, such as "coupon", "free sample", "trailer", "text reminder", "ringtone", "wallpaper", "screensaver", etc. If a premium content fee is associated with the user's submission of the text message or subscription or purchase of content, such fee must be clearly stated in the local currency along with the applicable duration for the fee, if a subscription.

Links Links to other sites and other messages provided by advertisers are not an express or implied endorsement of the materials disseminated at those websites or of the respective advertiser. Links to other sites are provided by OTAir as a convenience to its users. OTAir is not responsible for the materials contained at any website linked from this site that is not controlled or operated by OTAir.

Privacy Please read our full Privacy Policy, available at OTAir.com. OTAir requires certain information to provide its service, such as credit card numbers, cell phone numbers and billing addresses. OTAir will never release your information to anyone for any reason without prior approval by you, unless stated otherwise for a particular service or unless required by law. As part of its service, OTAir collects the mobile number and wireless carrier of those that access information via text message (SMS). The mobile numbers collected by your leased codes will never be shared with other users of the system nor will they be distributed outside the system, unless required by law. OTAir will never market to these mobile numbers under any circumstances whatsoever, unless authorized by the respective mobile users.

Disclaimer of Warranty YOUR USE OF THE SITE AND THE SERVICES IS AT YOUR SOLE RISK. THE SITE AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. NO REPRESENTATIONS, WARRANTIES OR GUARANTEES ARE BEING MADE WITH RESPECT TO THE SITE OR THE SERVICES. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, OTAIR AND ITS AFFILIATES AND SUBSIDIARIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE, OR IMPLIED WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER OTAIR NOR ANY OF ITS AFFILIATES OR SUBSIDIARIES, NOR ANY OF THEIR OFFICERS, DIRECTORS, LICENSORS, EMPLOYEES, AGENTS OR REPRESENTATIVES MAKE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND REGARDING THIS SITE OR THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF ACCURACY, SUITABILITY, COMPLETENESS, CURRENCY, RELIABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR SAFETY OF THE INFORMATION, OR ANY WARRANTY THAT THIS SITE, OR THE COMPUTER SYSTEMS, NETWORK RESOURCES OR SERVER THAT MAKES IT AVAILABLE, WILL BE (I) DEFECT-FREE OR CONTINUOUSLY AVAILABLE OR ACCESSIBLE, (II) FREE OF VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL ELEMENTS, OR (III) FULLY OR CONTINUALLY PROTECTED FROM UNLAWFUL ACCESS BY OTHERS, OR (VI) FREE FROM INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICES OR THAT THE SERVICES ARE NON-INFRINGING, AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED, AS ARE ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.

ANY MATERIAL OBTAINED THROUGH THE SITE OR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO COMPUTER SYSTEMS OR FOR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OUR SITE OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THEIR TERMS.

OTAIR AND ITS AFFILIATES AND SUBSIDIARIES HEREBY DISCLAIM, AND YOU HEREBY WAIVE AND RELEASE OTAIR AND ITS AFFILIATES AND SUBSIDIARIES FROM ANY AND ALL OBLIGATIONS, LIABILITIES, RIGHTS, CLAIMS OR REMEDIES IN CONTRACT OR TORT ARISING OUT OF OR IN CONNECTION WITH THESSE TERMS AND CONDITIONS OR THE SITE OR SERVICES.

Some states do not allow the exclusion of implied warranties, so the above exclusions with respect to implied warranties may not apply. In the event that under any applicable law, a warranty that has not been expressly provided is required with respect to the Site or the Services for any reason and cannot be disclaimed or waived, such warranty is limited in duration to ninety (90) days from the date of your registration or the date on which the Services were first provided to you, whichever is earlier. Furthermore, in such event, your sole and exclusive remedy for any breach of warranty will be, at OTAir's sole discretion, either (i) the re-performance of the defective Services or correction of the defective Site, as applicable, at no additional cost to you, or (ii) a refund of the amount of actually paid by you in order to receive the Services or use the Site, as applicable.

Limitation of Liability TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL OTAIR OR ANY OF ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, INFORMATION PROVIDERS OR LICENSORS BE LIABLE FOR ANY LOST GOODWILL, LOST PROFITS, LOSS OF USE OF MONEY, LOSS OF DATA OR INTERRUPTION IN ITS USE OR AVAILABILITY, STOPPAGE OF WORK, OR IMPAIRMENT OF ASSETS, ANY PERSONAL LOSSES OR HARDSHIP (INCLUDING, WITHOUT LIMITATION, STRESS AND ANXIETY, NERVOUS SHOCK, OR OTHER PERSONAL SUFFERING OR CONDITION), OR FOR ANY CONSEQUENTIAL, INDIRECT, PUNITIVE, INCIDENTAL OR SPECIAL DAMAGES FOR ANY CLAIM OR LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS, THE SERVICES, OR THE SITE (INCLUDING WHERE THE CAUSE CANNOT BE DETERMINED). THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER (i) THE CLAIM OR LIABILITY IS BASED UPON OR OTHERWISE ARISES OUT OF BREACH OF AN EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY OR OTHERWISE, (ii) THE CLAIM OR LIABILITY IS BASED UPON OR OTHERWISE ARISES OUT OF THE SERVICES, THE SITE, OR ANY OTHER ACTION PERFORMED OR UNDERTAKEN BY OTAIR UNDER OR IN CONNECTION THERETO, AND (iii) THE CLAIM OR LIABILITY WAS FORESEEABLE OR UNFORESEEABLE BY OTAIR OR ANY OTHER PARTY (AND REGARDLESS OF WHETHER OR NOT OTAIR WAS ADVISED OF, OR SHOULD HAVE KNOWN OF, THE POSSIBILITY THEREOF).

Some states do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply. In any event, to the greatest extent permitted under applicable law, OTAir and its affiliates' or subsidiaries' liability for damages (including expenses such as attorneys' fees and court costs), regardless of the form or cause of action, will be limited to $100 or the aggregate amount paid by you to OTAir for the Services for which the cause of action arose, whichever is greater.

Your Representations and Warranties In consideration of your use of the Services, you represent that you are of legal age to form a binding contract and are not a person barred from receiving such Services under the laws of the United States or other applicable jurisdiction. You also agree to: (i) provide true, accurate, current and complete information about yourself as prompted by the user account's registration form (such information being the "Registration Data") and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or OTAir has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, OTAir has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).

Indemnification You agree to defend, indemnify, and hold harmless OTAir and its subsidiaries, affiliates, officers, directors, agents, representatives, partners, and employees for all liabilities, damages, fees, losses, costs, and expenses of whatsoever kind or nature (including reasonable attorneys' fees and court costs) arising out of or in connection with any claim arising out of or in connection with (i) any act, omission, misrepresentation, or negligence by you; (ii) any violation of any applicable law by you; and (iii) any breach of these Terms and Conditions (including, without limitation, all representations and warranties) by you.

Termination You agree that OTAir may, under certain circumstances, immediately terminate your OTAir account and access to the Services without any prior notice. Cause for such termination shall include, but not be limited to, (i) breaches or violations of these Terms and Conditions, (ii) requests by law enforcement or other government agencies, (iii) a request by you (self-initiated account deletions), (iv) discontinuance or material modification to the Services (or any part thereof), (v) unexpected technical or security issues or problems, (vi) extended periods of inactivity, (vii) fraudulent or illegal activities performed by or on behalf of you in connection with the Services or the Site, and/or (viii) any other reason reasonably considered by OTAir to be in their best commercial interest. Termination of your OTAir account includes (a) removal of access to all offerings within the Services, (b) deletion of your password and all related information, files and content associated with or inside your account (or any part thereof), including but not limited to Advertiser Content and (c) barring further use of the Services. Further, you agree that all terminations for cause shall be made in OTAir's sole discretion and that OTAir shall not be liable to you or any third-party for any termination of your user account or access to the Services.

Force Majeure Neither OTAir or you shall be liable to the other party for any failure to perform its obligations under these Terms and Conditions if such failure was the result of an act, occurrence, or other event outside of its reasonable control, including without limitation: acts of God, fire, severe weather, and other natural disaster and events; accidents, acts of government, war, warlike conditions, terrorism, and public disorder; a failure or error in the operation, of all or any part of the Site, OTAir computer systems, logistics infrastructure, network resources, the Services, or any other computer systems or network resources to which they may be connected or upon which they may rely, and the taking offline of any of those computer systems or network resources when necessary; and any circumstances which produce or have the consequence of producing a degradation, fall-off, or complete severance of access to this Site or network resources or any other computer systems or network resources to which they may be connected by any person.

Jurisdiction OTAir is headquartered in Richmond, Virginia, United States of America. By accessing this Site or using the Services, you agree that the statutes and laws of the Commonwealth of Virginia, without regard to conflicts of law principles thereof, will apply to all matters arising from or relating to your use of this Site or the Services. You also agree and submit to the exclusive personal jurisdiction and venue of the state and federal courts in Richmond, Virginia with respect to such matters. OTAir makes no representation that materials on the Site are appropriate or available for use in other locations, and accessing them from territories where their contents are illegal is prohibited. Those who choose to access this Site from other locations, do so on their own initiative and are responsible for compliance with local laws.

Miscellaneous Provisions

Entire Agreement These Terms and Conditions constitute the entire understanding between the parties pertaining to the subject matter hereof and supersede all previous communications, proposals, representations and agreements, whether oral or written, relating to the subject matter hereof.

Non-Waiver Neither the failure of a party to enforce at any time any of the provisions of these Terms and Conditions nor the granting of any time or other indulgence shall be construed as a waiver of that provision or of the right of that party thereafter to enforce that or any other provision.

Severability If any portion of any provision of these Terms and Conditions is deemed unlawful, void or unenforceable for any reason, then that portion shall be deemed severable from these Terms and Conditions and shall not affect the validity and enforceability of the remaining portion of the provision or any other provisions, and these Terms and Conditions shall be automatically amended in order to effect, to the maximum extent permitted by law, the original intent of such provision.

Survival The provisions of these Terms and Conditions that, by their nature, are intended to survive the expiration or earlier termination of these Terms and Conditions, shall continue and remain in full force after the expiration or earlier termination, for whatever reason, of these Terms and Conditions, the Services, and this Site.

Assignment You may not assign any rights or delegate any obligations hereunder without the prior written consent of OTAir, which may be given at its sole and absolute discretion. Any other attempt to assign any rights or obligations hereunder without OTAir's prior written consent will be void and of no force or effect.

No Third Party Rights The Services and this Site are provided solely for your benefit, and no other person or entity shall have or acquire any right by virtue of your use of the Services or Site unless otherwise agreed to by OTAir.

Injunctive Relief You acknowledge that your violation of the provisions relating to intellectual property and proprietary rights may cause damage to OTAir which is unquantifiable but nonetheless real and irreparable. Accordingly, in the event OTAir determines in its sole discretion that you have violated or will violate any such provision, OTAir will be entitled to injunctive relief from a court of competent jurisdiction restraining such violation. This right to injunctive relief shall be cumulative and shall not restrict or limit OTAir's ability to resort to any other remedy available under law or equity.