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LIMITATION OF LIABILITY

1. Note that all terms not defined herein are as defined in the Terms and Conditions of Use.  The terms below can also be found in the Terms and Conditions of Use.
2. Safety Measures.

This section discusses the limitations of the Service and your responsibility to remain vigilant regarding Your pool. 

The Service is not a substitute for proper supervision and care related to swimming pools.  By accepting the Service, you are agreeing that you will not use the Service as the sole means of pool supervision, and indeed, will not rely on it whatsoever. 

You agree that the Service is a supplemental system to aid in the detection of a possible drowning event, and nothing more. You understand that as a technology system, it is limited by many factors, and it cannot replace the vigilance and care of a human being, it does not have the ability to rescue someone drowning, and it cannot provide medical attention.  It cannot prevent a drowning or damage from drowning.

The purpose of the system is to alert you of certain behavior that is indicative of a drowning event and to alert you promptly so that You can act on it.  By accepting the Service, You are representing that you are knowledgeable of all safety measures incumbent upon a pool owner, that You have implemented them, and that You will continue to remain vigilant regarding the supervision of the pool and the safety of people in and around the pool.  Some safety measures include, for example, maintaining adult supervision at all times; having a certified lifeguard supervise under certain circumstances; never leaving children unattended near or in the pool; maintaining a fence or other means to block entry into the pool area, etc.

1. No Warranty; Limitation of Liability; Hold Harmless; Standard of Care; Indemnification

1. Subscriber expressly agrees that: (a) the Services provided are best efforts services and the Services, Software and Equipment are provided by LifeGuard on an “AS IS” and “AS AVAILABLE” basis without warranties of any kind, either express or implied; (b) the Service and Equipment may be negatively affected by external factors that may be out of Lifeguard’s control, such as weather conditions, interruption and interference by persons in the pool, loss of signal, communication problems, etc.; (c) LifeGuard, its officers, shareholders, directors, employees, affiliates, vendors, carrier partners, content providers, internet providers/hosts, software providers, and other persons or entities involved in providing the Services or Equipment (collectively, the “LifeGuard Parties”) are not responsible or liable for any loss or impairment of service due in whole or in part to Subscriber owned- or provided-Equipment; and (d) all use of the Services, Software and Equipment, including that provided by Third Party Providers, as well as the purchase, download or use of any third party service, product, or application provided by or accessed through the Services or Equipment, are provided at Subscriber’s sole risk and Subscriber assumes total responsibility for Subscriber’s or any User’s use of the Service. Without limiting the generality of the foregoing, the LifeGuard Parties make no warranty: (i) that the Services will be uninterrupted or error free or that the Equipment will work as intended; and (ii) that the Services, Equipment or Software are compatible with any Subscriber owned- or provided-Equipment. Subscriber has the sole responsibility to secure Subscriber’s communications and the LifeGuard Parties will not be liable for any loss associated with unauthorized access to the Subscriber’s communication systems. In addition, neither the LifeGuard Parties nor any Third Party Provider of services or products makes any representations or warranties with respect to any product or services offered through the Services or Equipment, and LifeGuard shall not be party to nor be responsible for monitoring any transaction between Subscriber and any Third Party Provider of products or services.
2. Except for a refund or credit as expressly provided in this Agreement, in no event (including negligence) will the LifeGuard Parties be held responsible or liable for any loss, damage, cost or expense including direct, indirect, incidental, special, treble, punitive, exemplary or consequential losses or damages including, but not limited to, loss of profits, earnings, business opportunities, loss of data, personal injury (including death), property damage or legal fees and expenses, sought by Subscriber or anyone else using Subscriber’s Service: (x) resulting directly or indirectly out of the use or inability to use the Services (including the inability to access emergency 911 or e911 services) and/or use of the Software, Equipment or provided third party services or otherwise arising in connection with the installation, maintenance, failure, removal or use of Services, Software and/or Equipment or Subscriber’s reliance on the Services, Software and/or Equipment, including without limitation any mistakes, omissions, interruptions, failure or malfunction, deletion or corruption of files, work stoppage, errors, defects, delays in operation, delays in installation, failure to maintain proper standards or operation, failure to exercise reasonable supervision, delays in transmission, breach of warranty or failure of performance of the Services, Software and/or Equipment; or (y) resulting directly or indirectly out of, or otherwise arising in connection with, any allegation, claim, suit or other proceeding relating to Services, Software and/or Equipment, or the infringement of the copyright, patent, trademark, trade secret, confidentiality, privacy, or other intellectual property or contractual rights of any third party.
3. You acknowledge and agree that:

1. There is always a risk of injury and death when swimming.
2. While the Service is intended as an aid in the detection of a possible drowning incident, it is expressly not intended as a substitute for the good judgment, care, vigilance, and awareness that is always required when swimming. Human attention by those present at Your pool is the first and most important line of detection.    You acknowledge that the Service cannot and does not replace human attention and alertness and is intended as nothing more than an additional support in the detection of drowning, and You will never rely on the Service to be the primary source of drowning detection. You understand that any individual, whether a child or adult, should not be left alone in or near Your pool and should always be accompanied by another adult.  You agree to treat activities in and around Your pool with the same level of care as the vigilance a careful and loving parent would exercise (regardless of who is in or around Your pool), and that You will never consider the Service as a substitute for that level of human care and caution.

• You assume all risks, both known and unknown, even if arising from the negligence of Lifeguard or others, and assume full responsibility for swimming and other activities in and around Your pool.

1. Beta Users: If You are participating in a Beta phase, You further acknowledge that the system used in the Beta phase is necessarily an unfinished product and it may not perform at an optimal level. It is anticipated and expected that there will be errors, glitches, outages, etc. related to the Beta phase of any product.   You acknowledge and agree that the Service is not expected to identify every drowning incident.
2. Indemnification. Subscriber, for Yourself and on behalf of Your heirs, estate, assigns, family members, personal representatives and next of kin agrees to defend, indemnify and hold harmless the LifeGuard Parties from and against any and all claims and expenses, including reasonable attorneys’ fees, arising out of or related in any way to the use of the Service, including any and all claims, demands, losses, and liability arising out of or related to any INJURY, DISABILITY OR DEATH You may suffer, or loss or damage to person or property, whether arising from the negligence of Lifeguard or otherwise, to the fullest extent permitted by law. Subscriber agrees to indemnify and hold harmless the LifeGuard Parties against claims, losses or suits for injury to or death of any person, or damage to any property which arises from the use, placement or presence or removal of LifeGuard’s Equipment, facilities and associated wiring on Subscriber’s premises.
3. If Subscriber resides in a state which laws prevent Subscriber from taking full responsibility and risk for Subscriber’s use of the Services and/or Equipment, LifeGuard’s liability is limited to the greatest extent allowed by law.