Terms and Conditions of Service

Subscriber, the owner of a pool where the Service shall be installed, (“You”, “Your”, “Subscriber”) agrees to be bound to these General Terms and Conditions of Service (“Terms of Service” or “Agreement”) with respect to all LifeGuard-AI, LLC’s products, services and software (collectively the “Service(s)”) provided by LifeGuard-AI, LLC and its affiliates and subsidiaries authorized to provide the services set forth herein (collectively, “LifeGuard” “We”, “Us”), including the Terms of Use located at https://lifeguard-ai.com/, (the “Additional Terms of Use“), which are incorporated into these Terms of Service by this reference. You further understand and agree that the Privacy Policy https://lifeguard-ai.com/], which discusses the collection, use and disclosure of Subscriber personal information, is likewise incorporated into these Terms of Service by reference.

THESE TERMS OF SERVICE CONTAIN A BINDING ARBITRATION AGREEMENT THAT AFFECTS YOUR RIGHTS, INCLUDING THE WAIVER OF CLASS ACTIONS AND JURY TRIALS. THE AGREEMENT ALSO CONTAINS PROVISIONS FOR OPTING OUT OF ARBITRATION. THE AGREEMENT ALSO CONTAINS A WAIVER OF LIABILITY.   PLEASE REVIEW CAREFULLY.

1. Products and Services.

LifeGuard provides You, the pool owner, a detection system that monitors movement and behavior that the system detects as a possible drowning event and then alerts You of such possible drowning event.  The Service  (i) visually monitors Your pool through the use of a camera device, (ii) alerts You upon detection of certain behavior in the pool, and (iii) monitors the operation of the product by sending You notifications and status reports on the product’s communication path and availability.

The system requires satisfactory visibility conditions and is operational from sunrise to sunset.

The Services may be provided to you using a home port device or through your handheld mobile device (i.e. a smartphone or tablet), as may be applicable. To receive the Service through your mobile device, you will be configured during the installation to couple the Product with up to 3 mobile devices. Where a drowning incident or otherwise an unusual or suspected activity in the pool unit is identified, we will send a voice recording with an alert to all the devices configured to the service.

Note that by pairing the Product to your device, we may provide the Service by sending push-notifications and messages, emails, or alerts via various means of communication. You can deactivate the push-notifications at any time by changing the notification settings on your mobile device or by changing your settings within our Services, as applicable. Please note that the application may only be available for certain operating systems (for example, iOS), and that you may only download and use the application on a mobile device running a validly licensed copy of the operating system on which the application was designed to operate. Additionally, we may update the Service periodically through Your mobile device (if applicable). Updates shall be provided automatically with the purpose of improving, enhancing or fixing bugs in the then current version of the Service. The nature of the Service may change from time to time without prior notice to You. In addition, Company may cease (permanently or temporarily) providing the Service (or any part thereof) to You or generally to other users with or without prior notice. Please note, You may opt to connect Your products solely to a home port device, in which case the Services may be transmitted solely to such device and certain updates may not apply.

2. Safety Measures.

READ CAREFULLY.  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.

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

A.     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.

B.      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.

C.      You acknowledge and agree that:

                    i.                        There is always a risk of injury and death when swimming. 

                  ii.                        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.

                iii.                        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. 

                iv.                        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.

                  v.                        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.

                vi.                        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.

4. Fees.
1. Installation Fee.  LifeGuard (or a vendor of LifeGuard), will install (the “Installation”) the equipment required to have the Service become operational (the “Equipment”).  You are responsible to pay the installation fee (“Installation Fee”) prior to Installation.
2. Equipment Rental Fee. You are responsible to pay a monthly fee for rental of the Equipment (“Equipment Rental Fee”). 
3. Subscription Fee.  You are responsible to pay a monthly subscription fee (“Subscription Fee”) for monitoring of the pool. The Equipment Rental Fee and the Subscription Fee may collectively be referred to herein as “Monthly Charges”.
4. Monthly Charges.  Monthly Charges begin on the first day following your Installation date and automatically renew thereafter on a monthly basis beginning on the first day of the next billing period assigned to you, until the Service is cancelled or terminated, in accordance with the terms herein. The Monthly Charges will be billed at the beginning of your assigned billing period and each month thereafter. Payments are nonrefundable and there are no refunds or credits for partially used subscription period(s).  Monthly Charges are subject to change at the discretion of Lifeguard, but (1) Your Monthly Charges will not be changed for the first 6 months after Installation, and (2) any change will take effect only upon 60 day notice to You.
5. You may cancel the Service up to the last day of the billing period prior to the Service period that you wish to cancel, and the cancellation will be effective at the end of the then-current billing period. Any request for cancellation after the commencement of a service period will be effective at the end of the then-current service period.
6. In addition to the Monthly Charges, Subscriber agrees to pay any local, state or federal taxes imposed or levied on or with respect to the Services, the Equipment or Installation or service charges incurred with respect to the same.  Such charges shall be added onto the monthly fees or added to the Installation Fee, as the case may be.  All rates for Services, Equipment charges and other fees and surcharges are subject to immediate change in accordance with applicable law.
7. If Subscriber elects to pay by automatic recurring credit card, debit card or automatic clearing house payments, Subscriber authorizes LifeGuard to charge such accounts. If Subscriber elects to send a check as payment, Subscriber authorizes LifeGuard either to use information from Subscriber’s check to make a one-time electronic funds transfer from Subscriber’s bank account or to process the payment as a check transaction.
8. Failure to receive a bill does not release Subscriber from Subscriber’s obligation to pay. Failure to pay the total balance when due (including checks returned for insufficient funds) shall constitute a breach of this Agreement and may be grounds for termination of Service, removal of Equipment from Subscriber’s premises and/or imposition of a late fee (“Late Fee”) in accordance with applicable law and our late fees at such time. You can avoid incurring Late Fees by paying your monthly bill promptly. Any Late Fee imposed on Subscriber is intended to be a reasonable advance estimate of costs of managing past due accounts. The Late Fee is not interest, a penalty, a credit service charge or a finance charge.  If the Subscriber has more than one account served by LifeGuard, all LifeGuard provided Services at all locations may be subject to discontinuance of Service in the event any one account remains unpaid. In the event collection activities are required, an additional collection charge may be imposed.
9. Early Termination Fee.  If you terminate the Service within six (6) months of Installation, you are responsible to pay an Early Termination Fee of $95.  You agree that the Early Termination Fee and any other outstanding fees may automatically be deducted from the credit or debit card you provided to LifeGuard.
10. In addition to the above, additional fees may be imposed, including fees for returned checks, charge card chargeback, reconnection and service calls. Additional charges may also be imposed if collection activities are required to recover past due balances, including attorney fees.
5. Third Party Provider Charges. In connection with Subscriber’s use of the Services and Equipment, Subscriber may use and/or purchase products, services, software or applications that are provided to Subscriber by third parties (“Third Party Providers“). Subscriber acknowledges that Subscriber may incur charges in connection with the subscription to, purchase or use of these Third Party Provider products, services, software or applications. All such charges, including any additional fees and applicable taxes, shall be paid by Subscriber to the Third Party Provider and are not the responsibility of LifeGuard. Credits or billing adjustments for products, services, software or applications billed by a Third Party Provider shall be subject to the stated billing practices of that Third Party Provider. Termination of a service or subscription offered for a separate charge billed directly by a Third Party Provider shall be effected in accordance with the Terms of Service or similar agreement between the Subscriber and the Third Party Provider.
6. Right to Make Credit Inquiries. Subscriber acknowledges and agrees that LifeGuard may verify Subscriber’s credit standing, make inquiries and receive information about your credit experiences, including your credit report, from credit reporting agencies.
7. Security Deposit. LifeGuard may require a deposit or activation fee based on Subscriber’s credit standing or past payment history with LifeGuard. A deposit and/or activation fee does not relieve the Subscriber of the responsibility for prompt payment of bills on presentation. Any security deposit given by Subscriber for the Equipment or LifeGuard’s Service will be due and payable upon the first monthly billing. Such security deposits will be returned to Subscriber within sixty (60) days of termination of LifeGuard’s Service so long as payment has been made for all amounts due on Subscriber’s account and Subscriber has returned the LifeGuard Equipment undamaged. Security deposits paid by Subscriber for Equipment or Services may be used, to the extent permitted by law, to offset any unpaid balance or charges after termination of Service. Subscriber shall remain liable for any outstanding balances after the security deposit has been applied. Further terms and conditions of the security deposit may be contained in the deposit receipt given to Subscriber at the time the security deposit is collected.
8. Billing.  Invoices shall be sent electronically to the email You provide Us.  Subscriber agrees to pay all undisputed monthly charges and all applicable fees and taxes as itemized on the LifeGuard monthly bill and notify LifeGuard in writing of disputed items or requests for credit within thirty (30) days of Subscriber’s receipt of the bill for which correction of an error or credit is sought, or longer as provided by applicable law. The date of the dispute shall be the date LifeGuard receives sufficient documentation to enable LifeGuard to investigate the dispute. The date of the resolution is the date LifeGuard completes its investigation and notifies the Subscriber of the disposition of the dispute.
9. Adjustments or Refunds. 
1. Any adjustment or refund, given in each case at LifeGuard’s sole discretion, will be accomplished by a credit on a subsequent bill for Service, unless otherwise required by applicable law.
2. Limitation of Refund. Unless otherwise provided by applicable law, in the event any amounts owed by LifeGuard to Subscriber are not claimed by Subscriber within six months of the date on which the amount became payable to Subscriber, Subscriber shall forfeit all rights to the refund and all such amounts shall become the property of LifeGuard.
3. Except as otherwise expressly provided in this Agreement, the liability of the LifeGuard Parties for damages shall in no event, by reason of any delays, interruptions, omissions, errors, failures or defects in installation or service, exceed an amount equal to the Subscriber’s Service charges and associated Equipment fees for a regular billing period (“Maximum Credit”). No credit allowance will be made for interruptions of Service that are:
1. due to the negligence of or noncompliance with the provisions of the Terms of Service by Subscriber or any person authorized by Subscriber to use the Service;
2. due to the negligence of any person other than LifeGuard;
3. due to the failure or malfunction of Subscriber-owned equipment or third party equipment;
4. during any period in which LifeGuard is not given full and free access to the Equipment for the purpose of investigating and making repairs;
5. during a period in which Subscriber continues to use the Service on an impaired basis;
6. during any period when the interruption is due to implementation of a Subscriber order for a change in Service arrangements; or
7. due to circumstances or causes beyond the control of LifeGuard.  
10. Software and Equipment. 
1. Software. Subscriber agrees to comply with the terms and conditions of any software license agreement applicable to the software provided or installed by LifeGuard (“Software”). The Software shall be used solely in connection with the Services and Subscriber will not modify, disassemble, translate or reverse engineer, the Software. All rights title and interest to the Software, including associated intellectual property rights, are and will remain with LifeGuard and LifeGuard’s licensors. If Subscriber’s Service is terminated or cancelled, Subscriber will promptly return or, if directed by Lifeguard, destroy all Software provided by LifeGuard and any related written materials. LifeGuard will have the right to upgrade, modify and enhance the Equipment and Software from time to time.  LifeGuard will from time to time push software updates to Equipment.
2. Unless LifeGuard expresses otherwise in writing, all equipment, including but not limited to, any cables, wires, remotes, cable cards, battery backup units, modems, routers, gateways, and other equipment provided by Lifeguard and/or installed for use in the Service, and software installed or provided by LifeGuard remains the property of LifeGuard, except that all wiring on the Subscriber’s side of the demarcation point at Subscriber’s service location, whether installed by LifeGuard or by Subscriber, shall be Subscriber property and not LifeGuard Equipment, and repair and maintenance for such wiring is the responsibility of Subscriber unless otherwise agreed by Subscriber and LifeGuard. None of the Equipment shall become a fixture.. Subscriber will acquire no ownership or other interest in the Equipment and software by virtue of payments made pursuant to this Agreement or by the attachment of any portion of the Equipment to Subscriber’s residence or premises.
3. Use of Other Equipment and Devices. We do not represent that the Services will work correctly, or that all features will be available, if you utilize the Services using your own equipment.  We have no responsibility for the installation, operation, support, maintenance, or repair of any other devices, software, or services that you choose to use in connection with the Services.
4. Misuse of Equipment. LifeGuard Equipment is intended to service and reside at the specific service location and is not to be removed from the service location where it was installed or used off premises. Subscriber agrees that neither Subscriber nor any other person (except LifeGuard’s authorized personnel) will open, alter, misuse, tamper with, service, or make any alterations to any Equipment. Subscriber will not remove any markings or labels from the Equipment. Subscriber agrees to safeguard the Equipment from loss or damage of any kind, and not permit anyone other than a LifeGuard authorized representative to perform any work on the Equipment. Any misuse, alteration, tampering, or removal of the Equipment constitutes damages and/or theft of service and is prohibited.  
5. Return of Equipment.  Upon termination of Services, or if the occupancy or ownership of your Premises changes, You are responsible to return the Equipment to LifeGuard within 30 days of such event in an undamaged condition, subject only to reasonable wear and tear. Failing to return Equipment owned by us within thirty (30) days, in the manner instructed by LifeGuard, or returning Equipment in a damaged condition, will result in the imposition of a damaged or unreturned Equipment charge, as the case may be.  In no event shall LifeGuard be obligated to uninstall or retrieve the Equipment.    Failure of LifeGuard to remove the Equipment does not mean that LifeGuard has abandoned the Equipment. 
6. Damaged or Lost Equipment. If the Equipment is damaged by Subscriber, destroyed, lost or stolen while in Subscriber’s possession, Subscriber is responsible for the cost of repair or replacement of the Equipment.
7. Operation of Equipment. Subscriber agrees to operate any Equipment in accordance with instructions of LifeGuard. Failure to do so will relieve the LifeGuard Parties of liability for interruption of Service and may make the Subscriber responsible for damage to Equipment.
8. Tests and Inspections. Upon reasonable notification to the Subscriber, and at reasonable times, LifeGuard may make such tests and inspections as may be necessary to check the operation of the Equipment, and/or to determine that the Subscriber is complying with the requirements set forth herein.
11. Repair; Updates.
1. LifeGuard will repair and/or replace defective Equipment provided such damage was not caused by misuse, neglect or other fault of Subscriber.  LifeGuard may automatically push required software or firmware updates directly to Subscriber Equipment when necessary for the provision of LifeGuard Service(s). LifeGuard assumes no responsibility and shall have no responsibility for the operation, maintenance, condition or repair of any Subscriber-provided equipment and/or software.  Subscriber is also responsible for the repair and maintenance of inside wiring at the service location unless otherwise agreed by Subscriber and LifeGuard. LifeGuard is not responsible or liable for any loss or impairment of LifeGuard’s Service due in whole or in part to a malfunction, defect or otherwise caused by Subscriber equipment.
2. You agree that Equipment will not be serviced by anyone other than LifeGuard personnel or our designated agents or representatives.
3. Reconditioned Equipment. We may, at our option, supply new, reconditioned or refurbished Equipment.
4. In addition to any other circumstances set forth throughout this Agreement, LifeGuard’s obligation to replace or repair any Equipment will not apply in the following circumstances:

1. Where you alter, repair, or improperly move or handle the Equipment.
2. There is damage or other Equipment failure where you do not maintain the Equipment according to the owner’s manual; or you improperly store, ventilate, connect, or reconfigure, or place the Equipment. (Equipment must be placed in an area that complies with the manufacturers published space, electrical grounding, or environmental requirements).
3. Equipment is abused, vandalized, stolen, damaged by fire, water, wind, freezing, power failure, inadequate power supply, unusual atmospheric conditions, acts of war, acts of God or other Force Majeure events.
4. You use the Equipment in a manner inconsistent with its design, the owner’s manual, if any, or the way the manufacturer intended the equipment to be used.
5. You use the Equipment for any purpose other than your private non-commercial use.
6. The Equipment runs any software not provided by LifeGuard or its immediate partners, including but not limited to, application programs, network programs, upgrades, formatting of any kind, databases, files, drivers, source code, object code or proprietary data, or any support, configuration, installation or reinstallation of any software or data.
7. You are more than sixty (60) days past due on any of your payment obligations.

12. Prohibitions; Restrictions, Limitations of Use.  In addition to the prohibitions, restrictions and limitations found throughout this Agreement, You agree that:
1. Subscriber has reached the age of majority as defined by the State in which the pool is located. Subscriber controls access to the pool. Subscriber is responsible for ensuring that all persons who use Subscriber’s Services (each, a “User”) understand and comply with all terms and conditions applicable to the Services.  Only Users who are family members or family guests using the pool in a customary and/or non-commercial manner may use the Service.    
2. You acknowledge and agree that you are the owner of the Premises and the pool, and as such have the right to allow us and our representatives to enter and install, repair, make modifications, etc. on the Premises in connection with the delivery of the Services.
3. Moving the Equipment.  Subscriber shall not move the Equipment.  In the event You believe the Equipment needs to be moved for any reason (e.g., painting, construction, etc.), You shall notify LifeGuard to schedule a technician to handle the removal/re-installation.  Such removal/reinstallation shall be at Subscriber’s expense, at rates applicable at such time.  Billing shall not be suspended during such interruption of Service.
4. Moving from the Premises.  This Agreement is with You, the current pool owner.  If you cease to own, occupy, or control the pool or the Premises where the pool is located, then it will be deemed that you are cancelling this Agreement as of the date you cease to own, occupy, or control the pool or Premises.  Any new owner/occupier (“New Owner”) of the pool or the Premises will be required to contract with LifeGuard separately, which will be in LifeGuard’s sole determination.  If Lifeguard permits the New Owner to use the existing Equipment, You will be relieved of your responsibility to return the Equipment. 
5. Residential Use. The Service provided under this Agreement are solely for Subscriber’s residential use, and Subscriber shall not use the Service for any commercial purpose. LifeGuard shall have the right to determine, in its sole discretion, what constitutes a “commercial” purpose.  For the avoidance of doubt, commercial use shall include any type of rental of Your pool (and/or the property associated with Your pool), whether a single instance, short term (including short term rentals such as VRBO, AirBnB, etc) or long term.  Under no circumstance will LifeGuard be responsible or liable in any way whatsoever for any problem that occurs during or related to non-residential use.
6. Theft of Service; Dissemination of Information. Subscriber shall not intercept, receive or assist in the interception or receipt of, resell, distribute or duplicate or reverse engineer any Software or Service. In no event shall Subscriber use the Services and/or Equipment to engage in any illegal or prohibited activity.
13. Access to Subscriber Premises. Upon reasonable notice, Subscriber will provide access to the Premises, Equipment, and supporting equipment to LifeGuard and its employees, agents, contractors and representatives in order to install, connect, inspect, maintain, repair, replace, disconnect, remove or alter the Equipment, check for signal leakage or install or deliver LifeGuard provided Software.
14. PERSONAL DATA AND PRIVACY POLICY.
1. Accepting this Agreement means that you also agree to our Privacy Policy, available at https://lifeguard-ai.com/   which may be updated from time to time and describes the information we collect, how that information may be used and shared, and the choices you have about certain uses of information.
2. When you access and use third party services, including third party services which LifeGuard may make available as part of or in connection with your Services, you are subject to the terms of service and privacy policy issued by those third party providers when using their services. LifeGuard Terms of Service and Privacy Policies apply when you are using our Services and Equipment.
15. Violations of this Agreement. It shall be a violation of this Agreement for Subscriber or any User: (1) to engage in any conduct prohibited by this Agreement (or by any terms and conditions incorporated herein by reference); or (2) not to engage in conduct required by this Agreement, each case determined in LifeGuard’s sole good faith discretion. In addition, whether or not the conduct set forth below is elsewhere prohibited by this Agreement, and in addition to any other violations contained in the Agreement, it shall be a violation of this Agreement if:
1. Subscriber or any User fails to abide by LifeGuard’s rules and regulations or to pay the charges billed;
2. Subscriber or any User engages in any illegal or prohibited activity in connection with their use of any Service;
3. Subscriber or any User refuses to provide LifeGuard with reasonable access to the service location or refuses to allow LifeGuard to diagnose and/or troubleshoot a service issue when such access or customer interaction is necessary in order to provide the appropriate customer support; or
16. Suspension/Termination. 
1. LifeGuard may suspend or terminate this Agreement, disconnect any or all Services, and remove Equipment if Lifeguard in its sole discretion believes that You are in violation of any term of this Agreement or if Lifeguard determines that it has valid commercial reasons to do so.  LifeGuard may also suspend or terminate this Agreement if the amount of customer and/or technical support required to be provided to Subscriber or any User is excessive in the sole good faith discretion of LifeGuard.   Lifeguard shall not be liable to Subscriber upon a suspension or termination.
2. If LifeGuard terminates Service due to a violation of this Agreement by Subscriber, then Subscriber may be subject to additional fees and charges, including disconnect and termination fees and LifeGuard may also exercise other rights and remedies available under law.  Subscriber further agrees that upon such termination of the Service, Subscriber will immediately cease use of the Equipment and any Software, and Subscriber will pay in full the charges for Subscriber’s use of the Service and the Equipment through the end of the billing month.   Subscriber shall pay reasonable damages, collection and/or attorney’s fees, as well as other fees set forth in this Agreement, if Subscriber does not cooperate with the procedures for such termination, and/or if LifeGuard shall find it necessary to enforce collection or to preserve and protect its rights under this Agreement.
3. You may discontinue the Service for any reason at any time subject to the terms of this Agreement, including but not limited to, (1) giving proper notice, (2) payment of outstanding fees and charges, (3) payment of any fees and charges related to termination to the extent applicable (e.g., Early Termination Fee), and (4) return of all Equipment in good condition, subject only to normal wear and tear. 
17. Permissions.
1. The optimal functioning of the Service requires a fully functional internet connection. You agree to provide LifeGuard with access to your internet connection to the extent LifeGuard requires such access for the optimal functioning of the Service.
2. You agree that LifeGuard, in its sole discretion, may employ support staff to visually monitor the pool and to act as an additional source of response in the event of a drowning alert. 
3. In the event of an alert, the Equipment may retain a short video of the incident, and You hereby agree that LifeGuard may retain and use such video for the sole purpose of improving LifeGuard’s detection system, which learns through artificial intelligence.
18. Telephone Communications With You Regarding Your Account or Service. You agree that LifeGuard and its agents may call or text you at any phone number (landline or wireless) that you provide to us, using an automated dialing system and/or a prerecorded message, for non-promotional service and/or account-related purposes, such as appointment confirmations, service alerts, billing and collection issues or account recovery concerns. You agree to notify us: (1) if any such phone number changes; (2) is no longer active; or (3) is ported from a landline to a wireless phone number. You can manage your contact preferences by logging into your account. 
19. No Waiver. The failure of LifeGuard to enforce this Agreement and any of its components, for whatever reason, shall not constitute a waiver of any right of LifeGuard or the ability to assert or enforce such right at any time in the future.
20. No Assignment. This Agreement and the Services and/or Equipment supplied by LifeGuard are not assignable or otherwise transferable by Subscriber, without specific written authorization from LifeGuard. In LifeGuard’s discretion, LifeGuard may assign, in whole or in part, this Agreement.
21. Binding Arbitration. 

Please read this section carefully. It affects your rights.

1. Agreement to Arbitrate Disputes. Any and all disputes arising between You and LifeGuard, or Your or its respective predecessors in interest, successors, assigns, and past, present, and future parents, subsidiaries, affiliates, officers, directors, employees, and agents, shall be resolved by binding arbitration on an individual basis in accordance with this arbitration provision. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:

1. Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
2. Claims that arose before this or any prior Agreement; and
3. Claims that may arise after the termination of this Agreement.

Notwithstanding the foregoing, either You or LifeGuard may bring claims in small claims court in Your jurisdiction, if that court has jurisdiction over the parties and the action and the claim complies with the prohibitions on class, representative, and private attorney general proceedings and non-individualized relief discussed below. If the law of Your jurisdiction allows small claims actions to be removed or appealed for a trial de novo in a court of general jurisdiction, that appeal instead shall be resolved in an individual arbitration under this arbitration provision. You may also bring issues to the attention of federal, state, and local executive or administrative agencies.

Resolving Your dispute with LifeGuard through arbitration means You will have a fair hearing before a neutral arbitrator instead of in a court before a judge or jury. YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND LIFEGUARD EACH WAIVE THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL ACTION.

2. Opting Out of Arbitration. IF YOU HAVE BEEN AN EXISTING SUBSCRIBER FOR AT LEAST 30 DAYS BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT AND HAVE PREVIOUSLY ENTERED INTO AN ARBITRATION AGREEMENT WITH LIFEGUARD OR A PREDECESSOR COMPANY, THIS OPT OUT PROVISION DOES NOT APPLY TO YOU.

IF YOU BECAME A SUBSCRIBER WITHIN THE 30 DAYS IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT, AND DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY LIFEGUARD IN WRITING WITHIN 30 DAYS OF THE EFFECTIVE DATE OF THIS AGREEMENT.

IF YOU BECAME A SUBSCRIBER AFTER THE EFFECTIVE DATE OF THIS AGREEMENT, AND DO NOT WISH TO BE BOUND BY THIS ARBITRATION AGREEMENT, YOU MUST NOTIFY LIFEGUARD IN WRITING WITHIN 30 DAYS OF THE OPENING OF YOUR LIFEGUARD ACCOUNT.

TO BE VALID, AN OPT-OUT NOTICE MUST: (1) INCLUDE YOUR NAME, ADDRESS, LIFEGUARD ACCOUNT NUMBER, PHYSICAL SIGNATURE IF SENT BY MAIL OR ELECTRONIC SIGNATURE IF SENT VIA EMAIL, AS WELL AS A CLEAR STATEMENT THAT YOU ARE REJECTING THE ARBITRATION PROVISION IN THIS AGREEMENT; AND (2) BE RECEIVED BY LIFEGUARD WITHIN THE APPLICABLE 30 DAY TIME PERIOD ABOVE.

YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH LIFEGUARD OR THE DELIVERY OF LIFEGUARD SERVICES TO YOU. OPTING OUT OF THIS ARBITRATION PROVISION HAS NO EFFECT ON ANY OTHER PRIOR OR FUTURE ARBITRATION AGREEMENTS THAT YOU MAY HAVE WITH LIFEGUARD.

3. Pre-Arbitration Process.

1. Notice Of Dispute. A party who intends to commence arbitration must first send the other party a written Notice of Dispute and engage in a good-faith negotiation of the dispute in an effort to resolve it without the need for arbitration. To be valid, Your Notice of Dispute must include: (1) Your name; (2) the account number and service address; (3) an email address and telephone number at which You may be reached during business hours; (4) a description of the nature and basis of your claims or dispute (including where applicable specific dates); (5) an explanation of the specific relief sought; (6) Your physical or electronic signature; and (7) if You have retained an attorney, Your signed statement authorizing LifeGuard to disclose your confidential account records to Your attorney if necessary in resolving Your claim.
2. 60 Day Wait Period. Whoever sends the Notice of Dispute must give the other party 60 days after receipt to investigate the claim. During that period, either party may request an individualized discussion (by phone call or videoconference) regarding settlement, which shall take place at a mutually agreeable time (which can be after the 60-day period). You and a LifeGuard legal or business representative (or outside counsel) must personally participate, unless otherwise agreed in writing. Your lawyers (if any) also can participate. If LifeGuard has not been able to resolve your dispute to your satisfaction within the later of 60 days from when we received your Notice of Dispute or the date of the individualized discussion regarding settlement, you may start arbitration proceedings. The Notice of Dispute and discussion requirements are essential in order to give the parties a meaningful chance to resolve disputes informally. If any aspect of these requirements has not been met, the parties agree that a court can enjoin the filing or prosecution of an arbitration, and, unless prohibited by law, the arbitration administrator shall neither accept nor administer the arbitration nor assess fees in connection with such an arbitration. The submission of a Notice of Dispute will toll the statute of limitations for the claim until the later of 60 days from when we received your Notice of Dispute or the date of the individualized discussion regarding settlement.
1. Commencing an Arbitration. To commence an arbitration, You must submit a written Demand for Arbitration to the American Arbitration Association (“AAA”) with a copy to LifeGuard. A Demand for Arbitration form can be found on the AAA website at https://www.adr.org/rulesformsfees.
2. Arbitration Process. The arbitration will be administered by the AAA under the AAA’s Consumer Arbitration Rules, as modified by this arbitration provision. You may obtain copies of those rules from the AAA at www.adr.org. If the AAA will not enforce this arbitration provision as written, it cannot serve as the arbitration organization to resolve Your dispute. If this situation arises, or if the AAA for any reason cannot serve as the arbitration organization, the parties shall agree on a substitute arbitration organization or ad hoc arbitration, which will enforce this arbitration provision as to the dispute. If the parties are unable to agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization or ad hoc arbitrator that will administer arbitration under this arbitration provision as written. If there is a conflict between this arbitration provision and the AAA rules, this arbitration provision shall govern.

A single arbitrator will resolve the dispute between You and LifeGuard. Participation in arbitration may result in limited discovery. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect confidential or proprietary information, including subscriber personally identifiable information.

All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this arbitration provision, the interpretation of its prohibitions of class, representative, and private attorney general proceedings and non-individualized relief, and compliance with the requirements of subsections C and G shall be for a court of competent jurisdiction to decide. The Arbitrator is limited and bound by terms of this arbitration provision. Although the arbitrator shall be bound by rulings in prior arbitrations involving the same customer to the extent required by applicable law, an arbitrator’s ruling will not be binding in other proceedings involving different customers. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. An award rendered by the arbitrator may be entered in any court having jurisdiction over the parties for purposes of enforcement.

If the amount in dispute is $50,000 or less, LifeGuard agrees that You may choose whether the arbitration is conducted solely on the basis of documents submitted to the arbitrator, by a telephonic or videoconference hearing, or by an in-person hearing as established by AAA rules.

If the amount in dispute exceeds $50,000 or the claim seeks any form of injunctive relief, either party may appeal the award to a three-arbitrator panel administered by AAA under its Optional Appellate Arbitration Rules (including its rules governing allocation of fees and costs) by a written notice of appeal within thirty (30) days from the date of entry of the written arbitration award. The award shall be stayed during any such appeal. The members of the three-arbitrator panel will be selected according to AAA rules. The three-arbitrator panel will issue its decision within one hundred and twenty (120) days of the date of the appealing party’s notice of appeal. The decision of the three-arbitrator panel shall be final and binding, subject to any right of judicial review that exists under the FAA.

4. Arbitration Fees. Administrative and arbitrator fees will be allocated in accordance with the AAA rules.
5. Mass Arbitration Procedures. If 25 or more claimants submit Notices of Dispute or file arbitrations raising similar claims and are represented by the same or coordinated counsel, all the cases must be resolved in staged bellwether proceedings. You agree to this process even though it may delay the resolution of your claim. In the first stage, each side shall each select up to 15 cases (30 cases total) to be filed in arbitration and resolved individually by different arbitrators. In the meantime, no other cases may be filed in arbitration, and the AAA shall not accept, administer, or demand payment of fees for arbitrations commenced in violation of this Mass Arbitration Procedures section. If the parties cannot agree how to resolve the remaining cases after the conclusion of the first stage of bellwether proceedings, the process will be repeated until all claims are resolved.

If this Mass Arbitration Procedures section applies to a Notice of Dispute, any statute of limitations applicable to the claims set forth in that Notice of Dispute will be tolled from the time the first cases are selected for bellwether proceedings until that Notice of Dispute is selected for a bellwether proceeding, withdrawn, or otherwise resolved. A court will have the authority to enforce this Mass Arbitration Procedures section, including by enjoining the mass filing or prosecution of arbitrations or the assessment or collection of AAA fees.

6. Governing Law. Governing Law will be determined in accordance with AAA rules.
7. Waiver of Class and Representative Actions. YOU AGREE TO ARBITRATE YOUR DISPUTE AND TO DO SO ON AN INDIVIDUAL BASIS; CLASS, REPRESENTATIVE, AND PRIVATE ATTORNEY GENERAL ARBITRATIONS AND ACTIONS ARE NOT PERMITTED. You and LifeGuard agree that each party may bring claims against the other only in Your or its individual capacity and may not participate as a class member or serve as a plaintiff in any purported class, representative, or private attorney general proceeding. This arbitration provision does not permit and explicitly prohibits the arbitration of consolidated, class, or representative disputes of any form. In addition, although the arbitrator may award any relief that a court could award that is individualized to the claimant and would not affect other LifeGuard account holders, neither You nor LifeGuard may seek, nor may the arbitrator award, non-individualized relief that would affect other account holders. Further, the arbitrator may not consolidate or join more than one person’s claims unless all parties affirmatively agree in writing.

If any of the prohibitions in the preceding paragraph is held to be unenforceable as to a particular claim, or request for relief (such as a request for public injunctive relief) then You and LifeGuard agree that such claim or request for relief (and only that claim or request) shall be decided by a court after all other claims and requests for relief are arbitrated. In that instance, or any instance when a claim between You and LifeGuard proceeds to court rather than through arbitration, You and LifeGuard each waive the right to any trial by jury through this Agreement.

8. Amendments to this Arbitration Provision. Notwithstanding any provision in the Agreement to the contrary, You and LifeGuard agree that if LifeGuard makes any amendment to this arbitration provision (other than an amendment to any notice address or website link provided herein) in the future, that amendment shall apply to all disputes or claims that have arisen or may arise between You and LifeGuard, including disputes or claims that arose prior to the effective date of the amendment. We will notify you of amendments to this arbitration provision in the manner described in the Section entitled “Amendment. Notice”.  If you do not agree to the revisions, you must cease use of all Service(s) within 30 days and notify LifeGuard that You are canceling this Agreement.
9. Severability and Survival. If any other portion of this arbitration provision is determined to be unenforceable, then the remainder of this arbitration provision shall be given full force and effect. The terms of the arbitration provision shall survive termination, amendment or expiration of this Agreement.
1. Governing Law. Subject to the “Governing Law” subsection in the “Binding Arbitration” Section that precedes this Section, this Agreement shall be governed by the laws of the state of New York.
2. Severability. If any term or condition of this Agreement shall be adjudicated or determined as invalid or unenforceable by a court, tribunal or arbitrator with appropriate jurisdiction over the subject matter, the remainder of the Agreement with respect to such claim shall not be affected and shall remain valid and enforceable to the fullest extent permitted by law.
3. Survival. All representations, warranties, indemnifications, dispute resolution provisions and limitations of liability contained in this Agreement shall survive the termination of this Agreement, as well as any other obligations of the parties hereunder which, by their terms, would be expected to survive such termination or which relate to the period prior to termination (including legal conditions, payment, and LifeGuard rights and the rights of others).
4. Force Majeure. LifeGuard shall not be liable for any delay or failure of performance or Equipment due to causes beyond its control, including but not limited to: acts of God, fire, flood, explosion or other catastrophes; any law, order, regulation, direction, action or request of the United States government or of any other government including state and local governments having or claiming jurisdiction over LifeGuard, or of any department, agency, commission, bureau, corporation or other instrumentality of any one or more of these federal, state, or local governments or of any military authority; preemption of existing service in compliance with national emergencies, acts of terrorism, insurrections, riots, wars, unavailability of rights-of-way, material shortages, strikes, lockouts, or work stoppages.
5. Entire Agreement. These Terms of Service, including the applicable Additional Terms of Service and Customer Privacy Notice, the Waiver of Liability, your work/service order constitute the entire agreement between the Subscriber and LifeGuard with respect to the Services. To the extent that any language contained in the Agreement conflicts with any language contained in any of the aforementioned documents, the language contained in this Amendment shall control.   No undertaking, representation or warranty made by an agent or representative of LifeGuard in connection with the sale, Installation, maintenance or removal of LifeGuard’s Services or Equipment shall be binding on LifeGuard except as expressly included herein. 
6. Headings. The headings preceding the text of the sections and subsections of this Agreement are inserted solely for convenience of reference and shall not constitute a part of this Agreement nor shall they affect its meaning, construction or effect.

8. Drafting Party.  Any rule of law or any legal decisions that would require interpretation of any claimed ambiguities in this Agreement against the party that drafted it has no application and is expressly waived.
9. Amendment; Notice. LifeGuard may, in its sole discretion, change, modify, add or remove portions of these Terms of Service at any time. LifeGuard may notify Subscriber of any such changes to these Terms of Service, or any other required or desired notice hereunder, by posting notice of such changes on LifeGuard’s website, or by sending notice via email or postal mail to Subscriber’s billing address, or by contacting the telephone number(s) on Subscriber’s account (including mobile phones) by means such as but not limited to browser bulletins, walled garden (browser interruption), voice, SMS, MMS, and text messages, including by the use of by automatic telephone dialing systems. Subscriber agrees that any one of the foregoing will constitute sufficient notice. Because LifeGuard may from time to time notify Subscriber about important information regarding the Services, the Privacy Notice and these Terms of Service by such methods, Subscriber agrees to regularly check his or her postal mail, e-mail and all postings on the LifeGuard web site and Subscriber bears the risk of failing to do so. The Subscriber’s continued use of the Service(s) following notice of such change, modification or amendment shall be deemed to be the Subscriber’s acceptance of any such revision. If Subscriber does not agree to any revision of these Terms of Service, Subscriber must immediately cease use of all Services and notify LifeGuard that Subscriber is cancelling this Agreement in accordance with the then-current policy.   

Effective: August 31, 2022