Effective: May 23, 2024

PLEASE READ THESE TERMS CAREFULLY.

 SECTION 16 INCLUDES A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER AND SECTION 18 INCLUDES A CLASS ACTION WAIVER, WHICH AFFECT HOW DISPUTES ARE RESOLVED.

1. Acceptance of Terms; Modifications.

These Terms of Service (the “Terms”) are a binding legal agreement between you and WeLifeguard, Inc., a non-profit 401(c)(3) company incorporated under the laws of the State of Connecticut with a registered office at 266 Post Road East, Westport, CT 06880 (“WeLifeguard,” “we,” “us” and “our”). The Terms govern your use of our software applications, resources, and services for pool owners requesting lifeguarding services or swimming lessons and water safety providers (Lifeguards or Swim Instructors) to find each other, communicate with each other, and arrange for the provision of water safety services, and any other services or products we may offer from time to time (collectively, our “WeLifeguard Service”). The Terms govern all use of the WeLifeguard Service, whether you access it from our website at https://www.welifeguard.com (including any subdomain or localized version) (the “Site”) or, any future mobile applications, mobile websites, Facebook applications, or online or phone support offerings, or any other access point we make available to you. BY ACCEPTING THE TERMS DURING THE ACCOUNT SIGN-UP PROCESS, ACCESSING, OR USING THE WELIFEGUARD SERVICE WITHOUT AN ACCOUNT, YOU ACCEPT THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, YOU SHOULD NOT ACCEPT THEM, IN WHICH CASE YOU DO NOT HAVE THE RIGHT TO USE THE WELIFEGUARD SERVICE.

You understand and agree that we may change the Terms from time to time, and that any such changes will be effective (except as otherwise described in Section 16.10 below) when we post the modified Terms on the WeLifeguard Service, unless otherwise required by applicable law. Your continued access and use of the WeLifeguard Service after we post the modified Terms will constitute your consent to be bound by the modified Terms.

2. WELIFEGUARD Service.

2.1 Nature of the WeLifeguard Service. The WeLifeguard Service consists of a desktop Web application, and other related tools, support, and services that pool owners (“Pool Owners”) and providers of water safety services, Lifeguards or Swim Instructors,  (“Service Providers”) can use to find, communicate with, and interact with each other. 

2.2 WeLifeguard does not provide Water Safety Services. WeLifeguard is a neutral venue for Service Providers and Pool Owners. WeLifeguard is not a Service Provider and does not provide water safety services. We make no representations or warranties about the quality of the lifeguarding service or swimming lessons, or other services provided by Service Providers (“Water Safety Services”), or about your interactions and dealings with users. Service Providers listed on WeLifeguard are not under the direction or control of WeLifeguard, and Service Providers determine in their own discretion how to provide Water Safety Services. Though we may provide general guidance on our Site to Service Providers and Pool Owners about water safety and engaging Service Providers, WeLifeguard does not employ, recommend, or endorse Service Providers or Pool Owners, and, to the maximum extent permitted by applicable law, we will not be responsible or liable for the performance or conduct of Service Providers or Pool Owners, whether online or offline. We conduct an initial review of Service Provider profiles and certifications relating thereto and as described in the Terms and/or on our website and we may facilitate communication with Services Providers, but we do not perform additional screening of any kind of Service Providers or Pool Owners. You should exercise caution and use your independent judgement before engaging as a Service Provider, providing Water Safety Services, or otherwise interacting with users via the WeLifeguard Service. Pool Owners and Service Providers are solely responsible for making decisions that are in the best interests of themselves and their pool guests. For example, each Pool Owner should independently verify the lifeguarding certification of the Service Provider. Additionally, each WeLifeguard user is responsible for ensuring safe premises, proper supervision, and general safety of minor children, guests, invitees, and any other person present during the time that a service is being provided, to the extent that such supervision falls outside the scope of services specifically provided for in the Terms.  WeLifeguard will have no liability for anyone’s failure to provide general childcare, supervision outside the scope of the duties of the Service Provider, or for ensuring the safety of the premises serviced. 

2.3 Release. Subject to Section 15 below, WeLifeguard has no liability for any claims, injuries, loss, harm, death and/or damages arising from and/or in any way related to your interactions or dealings with other users and the acts and/or omissions of Service Providers and Pool Owners, whether online or offline. You acknowledge and agree that, to the maximum extent permitted by the applicable law, YOUR USE AND/OR PROVISION OF WATER SAFETY SERVICES IS AT YOUR SOLE AND EXCLUSIVE RISK. WeLifeguard has no financial obligation to its users.

Notwithstanding the provision of Water Safety Services, there are risks inherent in the activities overseen by Service Providers. These activities may be of a hazardous nature and/or may include activities such as swimming, swimming lessons, diving, and lifeguarding. In no event will WeLifeguard be liable for any damages arising out of or relating to the conduct of you or anyone else in connection with WeLifeguard’s site or Service Providers including but not limited to bodily injury, death, paralyzing injuries, and brain injuries. You are responsible for any accident, illness, injury, or death of any person or persons, or damage to or loss or destruction of any property arising or resulting from swimming, swimming lessons, diving, and/or lifeguarding directly or indirectly from your children, friends, guests, invitees, and/or relatives participation in the aforementioned activities and occurring during said participation or any time subsequent thereto while such activities are being conducted at your request and direction.  WeLifeguard shall not be liable for any damages related to, in connection with, or otherwise resulting from any use of the WeLifeguard site or Service Providers, regardless of the negligence (either active, affirmative, sole, or concurrent) of WeLifeguard, even if WeLifeguard has been advised of the possibility of such damages. WeLifeguard is not an insurance carrier.  WeLifeguard does not indemnify, insure, or provide insurance for any user, third party, or Service Provider, nor does the use of the WeLifeguard Service indemnify any user, third party, or Service Provide against claims or causes of action.  

2.4 Transactions are between Pool Owners and Service Providers. The WeLifeguard Service may be used to find and offer Water Safety Services. All financial transactions are between Pool Owners and Service Providers. You agree that WeLifeguard has no liability for damages of any kind associated with Water Safety Services (which may include bodily injury to, or death of, a pool user) or resulting from any other transactions between users of the WeLifeguard Service.  

2.5 Bookings. Pool Owners and Service Providers are only connected through the WeLifeguard Site. All transactions with each other after the initial connection are conducted directly between the Pool Owner and Service Provider. This includes booking the Service Provider, follow-up between the Pool Owner and Water Safety Provider, and all financial terms and payments (“Bookings”).  All requests for services to be performed by a Service Provider are subject to acceptance by that Service Provider. WeLifeguard makes no representations or guarantees relating to the schedule or availability of any particular Service Provider, and Service Providers are not obligated to accept your (or any) request and may, at their discretion, decline for any reason.  Service providers are subject to removal from the directory for failure to respond to Bookings in a timely manner. 

2.6 Pool Owners are Solely Responsible for Evaluating Service Providers. Pool Owners are solely responsible for evaluating the suitability of Service Providers for the services they offer to provide. Though WeLifeguard performs a limited review of Service Provider profiles, it does not conduct background checks, identity verifications, citizenship, or any other eligibility criteria except as specifically provided in the Terms.  The limited review of Service Provider profiles described in the Terms does not guarantee that any such review is accurate, complete, conclusive, or up-to-date. Similarly, WeLifeguard does not evaluate, review, or endorse evaluations or reviews of Service Providers by other Pool Owners that may be available via the WeLifeguard Service, and WeLifeguard makes no commitments that such evaluations or reviews are accurate or legitimate.  Service Providers are solely responsible for ensuring that their certifications are valid and that the credentials described in their profiles are accurate and up-to-date.  Pool Owners are responsible for confirming the accuracy of the representations made by Service Providers either orally or in writing, included but not limited to their Service Provider profiles on the WeLifeguard website.  

2.7 Emergencies. We recommend that Pool Owners give their Service Providers contact information where they can be reached in the event of an emergency. Service Providers agree to immediately contact Pool Owners in the event of an emergency. If your Service Provider requests that you or any guest, invitee, or other person on the Pool Owner’s premises, to authorize medical care for any person and you refuse, you release the Service Provider and WeLifeguard for any injury, damage or liability arising from failure to seek such care. WeLifeguard is not responsible for the costs of any medical treatment. By accepting the Terms, you acknowledge and agree that WeLifeguard does not, and is not required to, carry any type of insurance for Pool Owners or Service Providers.

2.8 Google Maps. Use of the WeLifeguard Service requires use of Google Maps features and content, which are subject to the current (1) Google Maps/Google Earth Additional Terms of Service at https://maps.google.com/help/terms_maps.html (including the Acceptable Use Policy at https://cloud.google.com/maps-platform/terms/aup/); and  (2) Google Privacy Policy at https://www.google.com/policies/privacy/ (collectively, the “Google Terms“). By using the WeLifeguard Service, you acknowledge and agree to the Google Terms as they apply to you (e.g., as an “End User“). Any unauthorized use of the Google Maps features and content may result in your suspension or termination from the WeLifeguard Service.

3. Certification of Compliance with Applicable Law.

By accessing and using the WeLifeguard Service, you certify that you: (1) are at least 18 years of age or the age of majority in your jurisdiction, whichever is higher, and (2) will comply with all laws and regulations applicable to your activities conducted through, or related to, the WeLifeguard Service.

• For Pool Owners, this means, among other things, that you will ensure that your pool is properly maintained and complies with all local laws or regulations; that you have obtained and will maintain any mandatory insurance policies (and that such policies will benefit third parties, including Service Providers, to the same extent they benefit you).
• For Service Providers, this means, among other things, that you certify that you are legally eligible to provide Water Safety Services in the jurisdiction where you provide Water Safety Services; that you have complied and will comply with all laws and regulations that are applicable to you; that you have obtained all business licenses, business tax registrations, and permits necessary to provide Water Safety Services legally; and that, when providing Water Safey Services, you will comply with all applicable health and safety laws.

You acknowledge that WeLifeguard is entitled to rely on these certifications from you, is not responsible to ensure that all users have complied with applicable laws and regulations and will not be liable for a user’s failure to do so.

4. Use of the WeLifeguard Service; Suspension.

4.1 Your Conduct on the WeLifeguard Service. When you use the WeLifeguard Service, you agree:

• To use the WeLifeguard Service only in a lawful manner and only for its intended purposes.
• Not to submit viruses or other malicious code to or through the WeLifeguard Service.
• Not to use the WeLifeguard Service, or engage with other users of the WeLifeguard Service, for purposes that violate the law.
• Not to use the WeLifeguard Service for purposes of competing with WeLifeguard or to promote other products or services.
• Not to post reviews that aren’t based on your personal experience, that are intentionally inaccurate or misleading, or that violate these Terms.
• Not to post content or materials that are pornographic, threatening, harassing, abusive, or defamatory, or that contain nudity or graphic violence, incite violence, violate intellectual property rights, or violate the law or the legal rights (for example, privacy rights) of others.
• Not to post “spam” or other unauthorized commercial communications.
• To use the WeLifeguard Service only for your own purposes, and not to impersonate any other person.
• Not to transfer or authorize the use of your account for the WeLifeguard Service by any other person, or to engage in fraudulent transactions.
• Not to provide false information in your profile on, or registration for, the WeLifeguard Service, or to create multiple or duplicate accounts.
• Not to interfere with our provision of, or any other user’s use of, the WeLifeguard Service.
• Not to solicit another user’s username or password for the WeLifeguard Service or any other sensitive personal information, including bank details.

4.2 Suspension and Termination. You understand and agree that we have no obligation to provide the WeLifeguard Service in any specific location or territory, nor to continue providing it once we have begun. We reserve the right to suspend or terminate your access to the WeLifeguard Service: (1) if in our discretion your conduct on the Site or WeLifeguard Service is inappropriate, unsafe, dishonest, or in breach of these terms; or (2) if necessary, in our discretion to protect WeLifeguard, its users, or the public. You may suspend or terminate your use of the WeLifeguard Service at any time and for any reason. If you wish to deactivate your account, please contact WeLifeguard. Note that if you have any outstanding payment obligations, those will survive suspension or termination of your account.

5. Registration; Account Security.

In order to use some aspects of the WeLifeguard Service, you will be required to create a username, password, and user profile. If you elect to use the WeLifeguard Service, you agree to provide accurate information about yourself and keep this information up-to-date. You agree not to impersonate anyone else and not to maintain more than one account (or, if WeLifeguard suspends or terminates your account, not to create additional accounts). You are responsible for maintaining the confidentiality of your username and password for the WeLifeguard Service and are responsible for all activity under your account. You agree to notify us promptly of any unauthorized use of your account.

6. Privacy.

Our collection and use of your personal information on the WeLifeguard Service is described in our Privacy Statement. By accessing or using the WeLifeguard Service, you acknowledge that you have read and understand the Privacy Statement.

7. Your Content.

7.1 Your Content. We may require or allow you (or someone else on your behalf) to submit or upload text, photographs, images, videos, reviews, information, and materials to your profile on the WeLifeguard Service or otherwise in connection with using the WeLifeguard Service and/or participating in promotional campaigns we conduct on the Site (collectively, “Your Content”). For example, Service Providers are invited to create a profile page with a photograph and other information and Pool Owners may submit reviews of Service Providers.

7.2 License. Except for the limitations on our use and disclosure of personal information described in our Privacy Statement, to the maximum extent and duration permitted under any applicable law, you grant WeLifeguard an irrevocable, perpetual, non-exclusive, fully-paid worldwide license to use, copy, perform, publicly display, reproduce, adapt, modify, transmit, broadcast, prepare derivative works of, and/or distribute Your Content in connection with providing and/or promoting the WeLifeguard Service, and to sublicense these rights to third parties.

7.3 Release. If your name, voice, image, persona, likeness, or performance is included in any of Your Content, you hereby waive, and release WeLifeguard and its users from any claim or cause of action, whether known or unknown, for defamation, copyright infringement, invasion of the rights of privacy, publicity, or personality, or any similar claim arising out of the use of Your Content in accordance with the license in Section 7.2 and the other provisions of these Terms.

7.4 Your Representations and Warranties about Your Content. You represent and warrant that (1) you are the owner or licensor of Your Content, and that you have all rights, consents, and permissions necessary to grant the license in Section 7.2 and make the release in Section 7.3 with respect to Your Content; (2) that you have any necessary consents and releases from individuals who appear or whose pets appear in Your Content; and (3) Your Content does not violate the law or these Terms.

7.5 Right to Remove or Screen Your Content. Though we are not obligated to do so, we reserve the right to monitor, screen, edit and/or remove Your Content on the WeLifeguard Service. Our enforcement of these Terms with respect to Your Content is at our discretion, and failure to enforce the Terms in one instance does not create a waiver of our right to enforce them in another instance. We have no obligation to retain or provide you with copies of Your Content, nor will we have any liability to you for any deletion, disclosure, loss, or modification to Your Content. It is your sole responsibility to maintain backup copies of Your Content.

7.6 Reviews. The WeLifeguard Service may provide the ability to leave public and/or private reviews of users. You acknowledge that even private reviews may be shared with third parties in accordance with applicable law and our Privacy Statement and that WeLifeguard has no obligation to preserve or indefinitely store any reviews. We have no obligation to provide you with the content of any reviews about you that are submitted by other users of the WeLifeguard Service, whether before or after deactivation of your account for the WeLifeguard Service. We will have no liability to you for any deletion, disclosure, loss, or modification of these reviews. We reserve the right to screen, edit, or remove these reviews from the WeLifeguard Service at any time.

8. Phone, Text, and Mobile Communications.

8.1 Consent to Text Messages and Other Communications. You consent to receive from or on behalf of WeLifeguard communications containing service-related information (including technical notices, updates, security alerts and support and administrative messages), and/or sales, marketing, or advertising messages, by autodialed, prerecorded, or artificial voice calls or SMS, text messages, email, over-the-top messaging platforms (such as WhatsApp), and other electronic means, at any phone number or email address you provide in connection with your account, even if your phone number is on the national or any state’s do-not-call registry. Your carrier’s normal messaging, data, and other rates and fees may apply to these communications. You are not required to provide this consent to receive autodialed sales, marketing, or advertising messages as a condition of purchasing anything or using the WeLifeguard Service, and you may opt-out of receiving such messages at any time as described in our Privacy Statement (though you may continue to receive messages while WeLifeguard processes your request).

8.2 Phone Number Changes. In the event you deactivate a mobile phone number provided to us, you agree to update your WeLifeguard account information promptly to ensure that messages are not sent to the person who acquires your old number.

9. Fees & Payment.

9.1 Fees for Pool Owners. Pool Owners may purchase Water Safety Services from a Service Provider with whom they connect as described in Section 2.5. If you are a Pool Owner, you enter into a transaction with the Service Provider directly and you agree to pay the total amount due to the Service Provider including any applicable taxes, fees, or surcharges. The Service Provider, who is not WeLifeguard, is responsible for performing the Water Safety Services.

9.2 Cancellations & Refunds.

• Cancellations by Service Provider. If a Service Provider cancels a Booking at any time, WeLifeguard is not responsible for finding a replacement Service Provider. If you are a Service Provider, you can appoint a substitute Service Provider. The Pool Owner must agree to the substitution and WeLifeguard is not responsible for services provided by that substitution. If you do not find a substitute and repeatedly cancel Bookings without justification, WeLifeguard may deactivate your account.
• General Terms for Cancellations. If you wish to cancel a Booking, you should contact the Service Provider directly. WeLifeguard is not responsible for ensuring payment to any Service Provider in the event of a cancellation and Service Providers are individually responsible for contracting for, and collecting any deposits, security payments, cancellation fees, and payment following services, as well as facilitating such payment. 
• Payment Disputes: All payment transactions are between the Pool Owner and the Service Provider. They are responsible to settle any payment disputes directly with each other.  

9.3 Taxes. You are solely responsible to pay any applicable taxes that arise as a result of your use of the WeLifeguard Service. This includes, without limitation, any form of sales tax, VAT, or income tax imposed in your jurisdiction on fees paid or received by you through the WeLifeguard Service. WeLifeguard does not retain or record information about fees paid or received for services, and does not provide recordkeeping, payroll, tax reporting, or tax withholding services of any kind. WeLifeguard is not an employer and does not contract with Service Providers or Pool Owners to facilitate payment or tax withholding or record-keeping of any kind. 

10. Copyright Infringement.

WeLifeguard follows the procedures of the Digital Millennium Copyright Act. We will respond to claims of copyright infringement that are reported in accordance with this Section. It is our policy, in appropriate circumstances, to deactivate or terminate the access of users or Service Providers who repeatedly infringe or are repeatedly charged with infringing others’ copyrights or other intellectual property rights.

If you believe in good faith that your copyrighted work has been infringed by content posted on the WeLifeguard Service or any Service Provider or user, please provide our designated copyright agent with a written notice that includes all of the following information:

• A description of the copyrighted work you believe to have been infringed;
• A description of the URL or other location on our Site of the material you believe to be infringing;
• Your name, mailing address, telephone number and email address;
• A statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
• A statement by you, which you make under penalty of perjury, that the above information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
• An electronic or physical signature of the person authorized to act on behalf of the copyright owner.

Our designated agent for notice of copyright infringement can be reached at: WeLifeguard, Inc, Attention: Copyright Notice, 266 Post Rd E., Westport, CT 06880.

11 Third Party Services, Links.

The WeLifeguard Service may contain links to third party websites or resources. You acknowledge and agree that we are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement of such websites or resources, or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for, and assume all risk arising from, your use of any such websites or resources.

12. Indemnity.

TO THE MAXIMUM EXTENT PERMITTED UNDER ANY APPLICABLE LAW AND EXCEPT AS OTHERWISE PROHIBITED BY APPLICABLE LAW, YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD WELIFEGUARD HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES, EXPENSES, DAMAGES AND/OR LIABILITIES, INCLUDING REASONABLE ATTORNEYS’ FEES AND COURT COSTS, THAT ARE IN ANY WAY RELATED TO YOUR: (1) transactions and interactions, online or offline, with other users of the WeLifeguard Service; (2) breach of these Terms; (3) disputes with other users of the WeLifeguard Service; (4) your misstatements, misrepresentations, or violation of applicable law; (5) property damage or personal injury to third parties caused by your pool or pool guests; (6) Your Content; or (7) your use or unauthorized disclosure of any contact information of Service Providers, Pool Owners, or their guests or invitees, or any other information obtained in connection with the Services provided by WeLifeguard, whether provided by WeLifeguard or obtained independently through any other source in violation of any applicable law. YOU FURTHER AGREE THAT YOU WILL COOPERATE WITH US IN THE DEFENSE OF SUCH CLAIMS. WE RESERVE THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER SUBJECT TO INDEMNIFICATION UNDER THIS SECTION, AND YOU WILL NOT SETTLE ANY SUCH CLAIM OR MATTER WITHOUT OUR ADVANCE WRITTEN CONSENT.

13. Intellectual Property.

13.1 WeLifeguard Service. WeLifeguard and its licensors retain all right, title, and interest in and to the WeLifeguard Service, the technology and software used to provide it, all electronic documentation and content available through the WeLifeguard Service (other than Your Content), and all intellectual property and proprietary rights in the WeLifeguard Service and such technology, software, documentation, and content. Except for your rights to access and use the WeLifeguard Service set forth in these Terms, nothing in these Terms licenses or conveys any of our intellectual property or proprietary rights to anyone, including you. You agree that we will have a perpetual right to use and incorporate into the WeLifeguard Service any feedback or suggestions for improvement that you provide to us concerning the WeLifeguard Service, without any obligation of compensation.

13.2 WeLifeguard Trademarks. WeLifeguard owns all rights in and to its trademarks, service marks, brand names, and logos (the “WeLifeguard Marks”). If you are a Service Provider, subject to these Terms, WeLifeguard grants you, for so long as you are in good standing on the WeLifeguard Service, a limited, revocable, non-exclusive, non-transferable license to use the WeLifeguard Marks solely: (a) in the form incorporated into goods, including customizable marketing collateral (promo cards, signage etc.), if any, made available for purchase via the WeLifeguard Store and/or (b) in other manners, solely to the extent specifically authorized in writing via the WeLifeguard Service. As a condition of your use of the WeLifeguard Service and the foregoing license, you agree that (1) you have no ownership rights in the WeLifeguard Marks and all goodwill associated with your use of the WeLifeguard Marks inures solely to the benefit of WeLifeguard, (2) such license immediately terminates upon your ceasing to be a Service Provider in good standing, whether at your own option or because WeLifeguard suspends or terminates your rights to use the WeLifeguard Service, (3) WeLifeguard may terminate your right to use any and all WeLifeguard Marks at any time for any or no reason in WeLifeguard’s sole discretion, and (4) you will not adopt or use any WeLifeguard Marks other than as explicitly authorized by WeLifeguard, and you will not use, register, or apply to register the WeLifeguard Marks, the term WELIFEGUARD, or any other term that includes the term WELIFEGUARD, or any other similar term, as a business name, trade name, trademark, domain name, social media profile name, or any other indicator of source.

14. Warranty Disclaimer for the WeLifeguard Service.

The information and materials found on the WeLifeguard Service, including text, graphics, information, links, or other items, are provided “as is” and “as available.” Reviews, profiles, advice, opinions, statements, offers, or other information or content made available through the WeLifeguard Service, but not directly by WeLifeguard, are those of their respective authors, who are solely responsible for such content. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WELIFEGUARD DOES NOT: (1) WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS OF INFORMATION AND MATERIALS ON THE WELIFEGUARD SERVICE; (2) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN WELIFEGUARD; (3) WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, FREE FROM COMPUTER VIRUSES, UNINTERRUPTED, ALWAYS AVAILABLE, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS, OR THAT ANY DEFECTS IN THE WELIFEGUARD SERVICE WILL BE CORRECTED. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WELIFEGUARD EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE WELIFEGUARD SERVICE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ACCURACY. IN ADDITION AND WITHOUT LIMITING THE FOREGOING, WE MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE SUITABILITY OF ANY SERVICE PROVIDER THAT OFFERS WATER SAFETY SERVICES VIA THE WELIFEGUARD SERVICE.

15. Limitation of Liability.

15.1 Exclusion of Certain Types of Damages. To the maximum extent permitted under applicable law, in no event will WeLifeguard be liable to you for any indirect, special, incidental, or consequential damages, including travel expenses or for any business losses, loss of profit, revenue, contracts, data, goodwill, or other similar losses or expenses that arise out of or relate to the use of or inability to use the WeLifeguard Service, including without limitation damages related to any information received from the WeLifeguard Service, removal of your profile information or review (or other content) from the WeLifeguard Service, any suspension or termination of your access to the WeLifeguard Service, or any failure, error, omission, interruption, defect, delay in operation, or transmission of the WeLifeguard Service, even if we are aware of the possibility of any such damages, losses, or expenses. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

15.2 Limit on Our Liability to You. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL WELIFEGUARD’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY IN ANY MATTER ARISING FROM OR RELATING TO THE WELIFEGUARD SERVICE OR THESE TERMS EXCEED THE AMOUNTS PAID BY YOU TO WELIFEGUARD (SPECIFICALLY EXCLUDING AMOUNTS PAID TO SERVICE PROVIDERS) DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO LIABILITY OR, IF YOU HAVE NOT PAID WELIFEGUARD FOR THE USE OF ANY SERVICES, THE AMOUNT OF $100.00. 

15.3 No Liability for Non-WeLifeguard Actions. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WELIFEGUARD BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, AND/OR CONSEQUENTIAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE WELIFEGUARD SERVICE, INCLUDING WITHOUT LIMITATION, PROPERTY DAMAGE, THEFT, BODILY INJURY, DEATH, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM RELIANCE ON INFORMATION OR CONTENT POSTED ON OR TRANSMITTED THROUGH THE WELIFEGUARD SERVICE, OR FOR ANY INTERACTIONS WITH OTHER USERS OF THE WELIFEGUARD SERVICE, WHETHER ONLINE OR OFFLINE. THIS INCLUDES ANY CLAIMS, LOSSES, OR DAMAGES ARISING FROM THE CONDUCT OF USERS WHO ATTEMPT TO DEFRAUD OR HARM YOU.

IF YOU HAVE A DISPUTE WITH A SERVICE PROVIDER OR POOL OWNER, YOU AGREE TO RELEASE WELIFEGUARD FROM ALL CLAIMS, DEMANDS, AND DAMAGES OF EVERY NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IN NO EVENT WILL WELIFEGUARD BE LIABLE FOR DIRECT OR INDIRECT CONSEQUENCES OF A POOL OWNER OR SERVICE PROVIDER FAILING TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.

16. Arbitration Agreement and Class Action Waiver.

PLEASE READ THIS SECTION CAREFULLY, AS IT PRESCRIBES HOW DISPUTES BETWEEN US WILL BE RESOLVED.  

BY ACCEPTING THE TERMS, YOU ARE WAIVING CERTAIN RIGHTS AS DESCRIBED IN THIS SECTION.

16.1 Arbitration Agreement; Claims. This Section 16 is referred to as the “Arbitration Agreement” in these Terms. Unless you opt out of the Arbitration Agreement in accordance with the procedure described in Section 16.9 below, you and WeLifeguard (together, the “Parties”) agree that any and all disputes or claims that arise between you and WeLifeguard relating to the WeLifeguard Service, interactions with others on the WeLifeguard Service, or these Terms (including any alleged breach of these Terms) (collectively, “Claims”), except for Excluded Claims, will be resolved as set forth in this Arbitration Agreement.   “Excluded Claims” means (1) individual claims brought in small claims court (if your claims qualify), (2) claims brought by WeLifeguard arising out of or related to a violation of Section 4.1, above, (3) claims in which either party seeks injunctive or other equitable relief for alleged, unlawful use of intellectual property (including, without limitation, copyrights, trademarks, trade names, logos, trade secrets, or patents) or emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack), and (4) claims that an arbitrator determines cannot be made subject to arbitration as described in Section 16.2 below.

16.2 Agreement to Arbitrate. Unless you opt out of the Arbitration Agreement in accordance with the procedure described in Section 16.9 below, you and WeLifeguard agree that any and all Claims (other than Excluded Claims) will be resolved exclusively on an individual basis through final and binding arbitration, rather than in a court (except as specifically permitted in Section 16.11(d)-(e)), in accordance with this Arbitration Agreement, and your rights in connection with all Claims (other than Excluded Claims) will be determined by a neutral arbitrator, not by a judge or jury. 

You and WeLifeguard agree that the Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To the extent that the Parties’ dispute involves both timely filed Excluded Claims and other Claims subject to this Agreement, the Parties agree to bifurcate and stay for the duration of the arbitration proceedings for any such Excluded Claims. If there is a final determination by the arbitrator (or the court, if required by law) that applicable law precludes enforcement of the Arbitration Agreement as to any claim, cause of action, or requested remedy, then that claim, cause of action, or requested remedy will be severed and stayed pending arbitration of the remaining claim, cause of action, or requested remedy.

16.3 Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND WELIFEGUARD AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, EXCEPT AS SPECIFICALLY PERMITTED IN SECTION 16.11(d)-(e). UNLESS BOTH YOU AND WELIFEGUARD AGREE OTHERWISE, YOU AGREE THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR OR COURT MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER WELIFEGUARD SERVICE USERS. Notwithstanding any other provision of this Arbitration Agreement or the Rules (as defined in Section 16.5), disputes regarding the interpretation, applicability, or enforceability of this Section 16.3 may be resolved only by a court and not by an arbitrator. In any case in which (a) the dispute is filed as a class, collective, or representative action and (b) there is a final judicial determination that this Section 16.3 is unenforceable with respect to any claim or any particular remedy for a claim (such as a request for public injunctive relief), then: (i) that claim or particular remedy (and only that claim or particular remedy) shall be severed from any remaining claims and/or remedies and stayed; (ii) this Section 16.3 shall be enforced in arbitration on an individual basis as to all such remaining claims or remedies to the fullest extent possible; and (iii) the stayed claims and/or remedies may be brought in a court of competent jurisdiction after all remaining claims are resolved by the arbitrator.

16.4 Pre-Arbitration Dispute Resolution. Our preference will always be to resolve complaints amicably and efficiently, without the need for arbitration. 

Before you commence arbitration, you must first contact us in writing to explain your complaint through the WeLifeguard office listed below and give us an opportunity to work with you to resolve it.  You or your legal representative, if you have one, may contact us by mail at WeLifeguard, Inc., Attn: Legal, 266 Post Road East, Westport, CT 06880. Your written complaint must include your name, the email address associated with your account, a detailed description of the nature and basis of the dispute, and the specific relief sought. Your written complaint must be on an individual basis and personally signed by you. For any dispute that WeLifeguard initiates, a written complaint will be personally signed by a WeLifeguard representative and sent to the email address associated with your account. If the issue is not resolved within 30 days after receipt of the written complaint, either party may initiate arbitration as specified in Section 16.5 “Arbitration Procedures” or Section 16.11 “Bellwether Arbitrations,” as appropriate.

16.5 Arbitration Procedures.  As used in this Section 16, the applicable arbitration rules described below are referred to collectively as the “Rules”.  The arbitration will be conducted by a neutral arbitrator in accordance with the JAMS Streamlined Arbitration Rules and Procedures (as modified by the JAMS Consumer Arbitration Minimum Standards in cases of consumer arbitrations) (the “JAMS Rules”) in effect at the time a claim is made, currently available at https://www.jamsadr.com/rules-streamlined-arbitration and https://www.jamsadr.com/consumer-minimum-standards/, respectively.  You are responsible for reviewing the rules in force at any relevant time, including, if necessary, contacting JAMS to determine which rules apply.

In all cases, the arbitrator will decide the substance of all claims in accordance with law as specified in Section 17, below, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall dismiss an arbitration demand on the pleadings if it does not contain sufficient factual matter to state a claim to relief that is plausible on its face. Any arbitration demand must be personally signed by you or by a WeLifeguard representative. The arbitration will be held in the county in which you reside or at another mutually agreed location.

All Rules, as modified by this Arbitration Agreement, are incorporated into these Terms by reference. You either acknowledge and agree that you have read and understand the Rules or waive your opportunity to read the Rules and any claim that the Rules are unfair or should not apply for any reason. If there is any inconsistency between the Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control, unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator also must follow the provisions of these Terms as a court would, including without limitation, the limitation of liability provisions in Section 15. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms and applicable law. The arbitrator shall submit a decision in writing, providing a concise written statement of the essential findings and conclusions on which the award is based. Decisions by the arbitrator are binding and enforceable in court and may be overturned by a court only for very limited reasons.

The arbitrator will not be bound by rulings in prior arbitrations involving different WeLifeguard users but will be bound by rulings in prior arbitrations involving the same WeLifeguard user to the extent required by applicable law. As limited by applicable law, these Terms and the applicable Rules, the arbitrator will have (1) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Claim, including the determination of whether a Claim is arbitrable, and (2) the authority to grant any remedy that would otherwise be available in court.

16.6 Costs of Arbitration. Payment of all filing, administration, case management, and arbitrator fees (collectively, the “Arbitration Fees“) will be governed by the applicable Rules. Each party will be solely responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees. At the end of any arbitration, the arbitrator may award reasonable attorney’s fees and costs or any portion thereof to either party upon determining that the claim, cross-claim, or defense is frivolous or brought for an improper purpose (as measured by the standards of Federal Rule of Civil Procedure 11(b)) to the extent authorized by applicable law.

16.7 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all Parties.

16.8 Severability. If any term, clause, or provision of this Section 16 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 16 will remain valid and enforceable, provided that if the finding of partial invalidity or unenforceability results in a final determination that the class action waiver set forth in Section 16.3 fails with respect to all of the claims in arbitration, then Section 16 will be unenforceable in its entirety.

16.9 Opt-Out Procedure. You can choose to reject your agreement to arbitration (Section 16.2) and your waiver of the right to bring or participate in class or representative actions (Section 16.3) by mailing us a written opt-out notice (“Opt-Out Notice“) in accordance with the terms of this Section 16.9. The Opt-Out Notice must be postmarked no later than 30 days after the date you accept these Terms for the first time. You must mail the Opt-Out Notice to WeLifeguard, Inc., Attn: Legal, 266 Post Road East, Westport, CT 06880. The Opt-Out Notice must state that you do not agree to the Arbitration Agreement and the class action waiver and must include your name, address, phone number, and the email address(es) used to register for the WeLifeguard Service to which the opt-out applies. You must personally sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Arbitration Agreement and class action waiver. If you opt out of the agreement to arbitrate and the waiver of the right to participate in class and representative actions, none of the arbitration provisions will apply to you and you will not waive your right to engage in class or representative actions, but the remainder of these Terms will continue to apply. Opting out of this Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us.  Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Arbitration Agreement and did not validly opt out of it. By opting out of binding arbitration, you are agreeing to resolve Claims (including Excluded Claims) in accordance with Section 17.

16.10 Future Changes to this Arbitration Agreement. Notwithstanding any provision in these Terms to the contrary, you agree that if we make any change to this Arbitration Agreement (other than a change to any notice address or website link provided herein) in the future, that change will not apply to any claim that was filed in a legal proceeding against WeLifeguard prior to the effective date of the change. Moreover, if we terminate this Arbitration Agreement by removing it from these Terms, such termination will not be effective until 30 days after the version of these Terms not containing the Arbitration Agreement is posted to the Site and will not be effective as to any claim that was filed in a legal proceeding against WeLifeguard prior to the effective date of removal.

16.11 Bellwether Arbitrations. For disputes arising in the United States, if, one another, 20 or more arbitration demands of a similar nature are asserted against or on behalf of the same or related parties, the following procedures will apply:

1. The demands must be filed with JAMS on an individual basis and otherwise comply with all applicable filing requirements in this Arbitration Agreement, including the pre-dispute resolution and personal-signature requirements in Sections 16.4 and 16.5.
2. Claimants will collectively select 5 demands and respondents will collectively select 5 demands, for a total of 10 demands, to be the “Bellwether Arbitrations.” These Bellwether Arbitrations will be individually arbitrated, as otherwise provided by this Arbitration Agreement. The parties will work in good faith with the arbitrators to complete each Bellwether Arbitration within 120 days of its initial pre-hearing conference.
3. The remaining demands not selected as Bellwether Arbitrations will not be arbitrated (or otherwise litigated in any venue) except as provided in Section 16.11(e). JAMS will immediately place any such matters on administrative suspension (or, alternatively, terminate the proceedings), and no party will be responsible for paying any filing or administrative fees in connection with the demand until the suspension is lifted, or the demand is reinstated under Section 16.11(e). Any statutes of limitations applicable to a demand that is subject to this paragraph will be tolled as of the date the demand was filed.
4. Within 60 days of the completion of the Bellwether Arbitrations (unless the parties agree to a lengthier period), all parties will engage in good faith in a non-binding global mediation of all remaining demands. Unless the parties agree on a mediator, the mediator will be appointed by JAMS and have experience in the underlying subject matter of the disputes. WeLifeguard will pay the mediator’s fee. Notwithstanding Section 16.7, the mediator may be provided the results of the Bellwether Arbitrations to facilitate a resolution of all or some of the remaining demands. Counsel for all parties must immediately present to their clients any final settlement offers emanating from the mediation.
5. If the parties are unable to resolve all or some of the remaining demands within 90 days of the completion of the Bellwether Arbitrations (unless the parties agree to a lengthier period), JAMS will lift the administrative suspensions (or reinstate the terminated proceedings) for the unresolved demands only, and the unresolved demands will proceed in individual arbitration as otherwise provided by this Arbitration Agreement. However, any party to an unresolved demand may, upon reasonable notice to the opposing party, opt out of the arbitration process and proceed in court on that unresolved demand. Any unresolved demands that proceed in court under this paragraph may do so in class or representative proceedings (subject to applicable law), notwithstanding any contrary provisions in this Arbitration Agreement. For the avoidance of doubt, the right to proceed in court under the preceding sentence applies only to the unresolved demands that were filed and subjected to the protocols set forth in this Section 16.11.
6. The parties agree that the protocols set forth in this Section 16.11 are designed to achieve an overall faster, more efficient, and less costly mechanism for resolving a large number of similar arbitration demands, including the demands of claimants who are not selected for a Bellwether Arbitration.
7. The parties may seek relief from a court of competent jurisdiction to enforce this Section 16.11.

17. Governing Law and Jurisdiction.

17.1 For users in the United States and Canada, these Terms, and any dispute between you and WeLifeguard, will be governed by the laws of the State of Connecticut and applicable U.S. federal law, without regard to principles of conflicts of law, except that the Federal Arbitration Act will govern the interpretation and enforcement of Section 16 (the Arbitration Agreement). Unless you and we agree otherwise, or except where prohibited by applicable law, in the event that the Arbitration Agreement does not to apply to you or to a particular claim or dispute, you agree that any claim or dispute that arises between you and WeLifeguard must be resolved exclusively by a state or federal court located in the State of Connecticut, and you and WeLifeguard agree to submit to the personal jurisdiction of the courts located within Bridgeport or Stamford, Connecticut for the purpose of litigating all such claims or disputes.  

18. Class Action Waiver.

YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND WELIFEGUARD AGREE OTHERWISE, THE COURT MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE COURT MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER WELIFEGUARD SERVICE USERS.

19. Force Majeure.

WeLifeguard shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, natural disasters, earthquakes, hurricanes, wildfires, floods, war, terrorism, riots, embargoes, fires, accidents, pandemics, disease, strikes, or other similar disasters.  

20. Miscellaneous.

Nothing in these Terms will be construed as making either party the partner, joint venturer, agent, legal representative, employer, worker, contractor, subcontractor, or employee of the other. Neither party will have or hold itself out to any third party as having any authority to make any statements, representations, or commitments of any kind, or to take any action, that will be binding on the other, except as provided for herein or authorized in writing by the party to be bound. These Terms are non-exclusive and do not prohibit Service Providers from offering water safety services via other means or third parties. The invalidity, illegality, or unenforceability of any term or provision of these Terms will in no way affect the validity, legality, or enforceability of any other term or provision of these Terms. In the event a term or provision is determined to be invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and these Terms will be enforceable as so modified. To the maximum extent possible under applicable local law, this Agreement will be binding on and will inure to the benefit of the legal representatives, successors, and assigns of the parties hereto. These Terms will continue to apply even after your relationship with WeLifeguard ends.