Poolside Tech TERMS OF USE

This Poolside Tech Mobile Application End User License Agreement (“Agreement”) is a binding agreement between you (“End User” or “you”) and Poolside Tech, LLC (“Poolside”, “we”, or “us”).  This Agreement governs your use of Poolside’s The Attendant mobile application (including all related Poolside documentation, the “Application”).  The Application is licensed, not sold, to you.

BY DOWNLOADING, INSTALLING, OR USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD/INSTALL/USE THE APPLICATION AND IF YOU HAVE DOWNLOADED OR INSTALLED IT, DELETE IT FROM YOUR MOBILE DEVICE.

POOLSIDE RESERVES THE RIGHT TO UPDATE THIS AGREEMENT FROM TIME TO TIME BY MAKING THE UPDATED TERMS AVAILABLE TO YOU AT THE TIME OF AN UPDATE TO THE APPLICATION OR BY POSTING UPDATED TERMS TO POOLSIDE’S WEBSITE AT POOLSIDE.TECH.  YOUR CONTINUED USE OF THE APPLICATION AFTER SUCH UPDATE SHALL CONSTITUTE YOUR ACCEPTANCE OF THE UPDATED TERMS

Questions, complaints or claims with respect to the Application should be directed to Poolside at support@poolside.tech

1. LICENSE GRANT‍

Subject to the terms of this Agreement, Poolside grants you a limited, non-exclusive, and nontransferable license to:

(a) download, install, and use the Application for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you (“Mobile Device”) strictly in accordance with the Application’s documentation; and

(b) access, stream, download, and use on such Mobile Device any content and services made available in or otherwise accessible through the Application, strictly in accordance with this Agreement and any additional terms of use identified as applicable to such content and services.

2. LICENSE RESTRICTIONS

You shall not:

(a) copy the Application, except as expressly permitted by this license;

(b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;

(c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;

(d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;

(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time;

(f) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application; or

(g) use the Application in, or in association with, the operation or maintenance of any hazardous environments or systems.

3. RESERVATION OF RIGHTS

You acknowledge and agree that the Application is provided under license, and not sold, to you.  You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement.  Poolside and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.

4. COLLECTION AND USE OF YOUR INFORMATION

(a) You acknowledge that when you download, install, or use the Application, Poolside may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the Application.  You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Application or certain of its features or functionality.  All information we collect through or in connection with this Application is subject to our Privacy Policy https://poolside.tech/privacy/.  By downloading, installing, using, and providing information to or through this Application, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

(b) Without limiting the generality of the foregoing, if you use the Application to monitor or control a Poolside device such as The Attendant (“Poolside Device”), or information collected or generated by that Poolside Device, we may automatically collect:

• technical information about your swimming pool systems that are monitored by or connected to a Poolside Device, including systems such as heaters, thermometers, filters, cleaners, pumps, blowers, lights, pH and chlorine monitors, salt cells, and pool chemical distribution systems;
• usage information about those pool systems, such as start and stop times, heating and cooling events, equipment configuration during usage, energy consumption, failures and outages, and which user account initiated activities (such as turning on a heater) through the Poolside Device or Application; and
• environmental information about parameters being monitored, such as air temperature, water temperature, pH and chlorine levels, and other water quality parameters; and performance information such as duration or speed of heating or cooling under various environmental conditions.

(c) Poolside may share data collected by the Poolside Device or the Application with respect to your pool usage, pool conditions, and pool systems with relevant manufacturers, installers, dealers, or authorized service providers, whether or not in an aggregated and/or de-identified form.

5. GEOGRAPHIC LIMITATIONS

You acknowledge that you may not be able to access the Application or particular content or services outside of the United States.  If you access content or services from outside the United States, you are responsible for compliance with local laws.

6. UPDATES

Poolside may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”).  Updates may also modify or delete in their entirety certain features and functionality.  You agree that Poolside has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.  Based on your Mobile Device settings, when your Mobile Device is connected to the internet, either:

(a) the Application will automatically download and install all available Updates; or

(b) you may receive notice of or be prompted to download and install available Updates.

You acknowledge and agree that the Application or portions thereof may not properly operate should you fail to promptly download and install all available Updates.  All Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.

7. THIRD-PARTY MATERIALS

The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”).  You acknowledge and agree that Poolside is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof.  Poolside does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.

8. TERM AND TERMINATION

(a) The term of this Agreement commences when you download/install the Application and will continue in effect until terminated by you or Poolside as set forth in this Section 8.

(b) You may terminate this Agreement by deleting the Application and all copies thereof from your Mobile Device.

(c) Poolside may terminate this Agreement at any time without notice if it ceases to support the Application, which Poolside may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.

(d) Upon termination:

    (i) all rights granted to you under this Agreement will also terminate; and

   (ii) you must cease all use of the Application and delete all copies of the Application from your Mobile Device and account.

(e) Termination will not limit any of Poolside’s rights or remedies at law or in equity.

9. USE OF JUDGEMENT

You acknowledge that the Application is not a substitute for your informed judgment with respect to the safe operation and maintenance of any swimming pool and any pool systems as to which the Application may be reporting or making recommendations.  Without limiting the generality of the foregoing, you remain solely responsible for decisions made based on or relating to any reports or recommendations provided by the Application, including without limitation the use of pool chemicals and heaters.

10. DISCLAIMER OF WARRANTIES

THE APPLICATION IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND.  TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, POOLSIDE, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.  WITHOUT LIMITATION TO THE FOREGOING, POOLSIDE PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

11. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL POOLSIDE OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY FOR ANY OF THE FOLLOWING, ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR PARTICULAR FEATURES, CONTENT, OR SERVICES:

(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.

(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE LESSER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION OR TEN DOLLARS (USD $10.00).  THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE, OR POOLSIDE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

(c) SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

12. INDEMNIFICATION

You agree to indemnify, defend, and hold harmless Poolside and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement, including but not limited to the content you submit or make available through this Application.

13. EXPORT REGULATION

The Application may be subject to US export control laws, including the Export Control Reform Act and its associated regulations.  You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation.  You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.

14. US GOVERMENT RIGHTS

The Application is commercial computer software, as such term is defined in 48 C.F.R. §2.101.  Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.

15. SEVERABILITY

If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.

16. GOVERNING LAW

This Agreement is governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the Court of Common Pleas of Bucks County, Pennsylvania or the United States District Court for the Eastern District of Pennsylvania.  You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

17. CLASS ACTION WAIVER

YOU WAIVE THE RIGHT TO LITIGATE IN COURT OR ARBITRATE ANY CLAIM OR DISPUTE AS A CLASS ACTION, EITHER AS A MEMBER OF A CLASS OR AS A REPRESENTATIVE, OR TO ACT AS A PRIVATE ATTORNEY GENERAL, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY.

18. LIMITATION OF TIME TO FILE CLAIMS

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

19. APPLE-SPECIFIC TERMS

If you are downloading/installing the Application from the Apple App Store, you acknowledge and agree to the following additional Apple Inc. (“Apple”) terms:  

(1) This Agreement is between you and Poolside only, and not with Apple;

(2) You may use the Application only on Apple-branded products that you own or control and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions, except that the Application may be accessed and used by other accounts associated with you via Family Sharing or volume purchasing;

(3) Apple has no obligation to furnish any maintenance or support services with respect to the Application;

(4) in the event of any failure of the Licensed Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Application to you; and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Poolside’s sole responsibility (subject to the disclaimers and limitations in this Agreement);

(5) Poolside, not Apple, is responsible for addressing any claims of you or any third party relating to the Application or your possession or use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation (subject to the disclaimers and limitations in this Agreement);

(6) in the event of any third party claim that the Application or your possession and use of that Application infringes that third party’s intellectual property rights, Poolside, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim;

(7) You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties;

(8) You must comply with applicable third party terms of agreement when using the Application;

(9) Apple and its subsidiaries are third party beneficiaries of this Agreement, and will have the right (and you will be deemed to have accepted its right) to enforce its terms against you.

20. ENTIRE AGREEMENT

This Agreement, any written agreements between you and Poolside with respect to Poolside devices, products, or services supported by this Application, and Poolside’s Privacy Policies and Terms of Use described above constitute the entire agreement between you and Poolside with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application.

21. WAIVER

No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.

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Revised: 10/11/2023

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