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Threat Extinguisher Software and Hardware Terms of Use Agreement

March 1st, 2024

PLEASE READ THIS COMBINED SOFTWARE LICENSE AND TERMS OF USE AGREEMENT (“TERMS OF USE”) CAREFULLY. BY LOADING THE SOFTWARE LICENSE FILE, LOGGING INTO, ACCESSING OR USING THE THREAT EXTINGUISHER (“THREAT EXTINGUISHER” OR “WE”) SOFTWARE OR PRODUCTS (AS DEFINED BELOW) , YOU REPRESENT THAT (1) YOU HAVE READ AND AGREE TO BE BOUND BY THESE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH THREAT EXTINGUISHER, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS OF USE PERSONALLY OR ON BEHALF OF THE ENTITY YOU REPRESENT, AND THE CUSTOMER YOU REPRESENT AND TO BIND THOSE ENTITIES TO THESE TERMS OF USE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITIES, AS APPLICABLE, IDENTIFIED AS THE USER IN THE COURSE OF THE REGISTRATION PROCESS. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THESE TERMS OF USE, YOU MUST NOT ACCESS OR USE THE SOFTWARE OR THE PRODUCTS.

Threat Extinguisher and you may be referred to individually as a “Party” and collectively as the “Parties”. The Threat Alert System by Threat Extinguisher may be referred to as “server”, “application”, and collectively as the “Threat Alert System”. Any products sold by Threat Extinguisher may be referred to as “properties”.

These Terms of Use will be effective as of the date any product sold by Threat Extinguisher are installed on-premise in part or in entirety.  The Threat Alert System, devices, and Software Clients are licensed product(s), you accept them as described above and will continue in effect thereafter until terminated in accordance with their terms.

Note: Use of the Threat Extinguisher devices, systems, and software is at your own risk. By using any combination of the Threat Extinguisher devices, systems, and software you agree that these components are being provided to you as a resource but without any warranty or representation regarding the results or outcomes of use. You understand that any number of things, including without limitation, inadequate network coverage, NETWORK INTERRUPTIONS, or a misconfigured IP address can prevent a message from being launched, delivered, detection of  input activation, or relay closing. You understand and agree that you will not rely on this application as the sole means by which you will communicate with any emergency contacts or emergency service providers. You understand and agree that other methods of communication are available to you, including the verbal transmission of information over the phone. the Threat Extinguisher devices, systems, and software cannot and does not replace, and is not intended to replace, your other methods for communicating with emergency contacts or emergency service providers. The Threat Extinguisher devices, systems, and software including the Threat Alert System does not call or notify 911 or emergency services and does not replace the need to place a call to 9-1-1 in the event of an emergency.

THREAT EXTINGUISHER DISCLAIMS ANY AND ALL LIABILITY, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, FOR ANY FAILURE OR MALFUNCTION OF THE SYSTEM TO PREVENT OR MITIGATE ANY INCIDENT, INCLUDING BUT NOT LIMITED TO LIFE-THREATENING OR EMERGENCY EVENTS SUCH AS SHOOTINGS, VIOLENCE, OR NATURAL DISASTERS. THE SYSTEM IS PROVIDED ON AN ‘AS IS’ BASIS, AND USERS ASSUME ALL RISK ASSOCIATED WITH ITS USE.

PLEASE NOTE THAT THESE TERMS OF USE ARE SUBJECT TO CHANGE BY THREAT EXTINGUISHER IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Threat Extinguisher will make an updated copy of these Terms of Use available at: https://www.threatextinguisher.com/terms-and-conditions/ (the “Website”). We will also update the “Last Updated” date at the top of these Terms of Use. If we make any material changes, and you have registered and email with us for updates (as defined in Section 1.2 below) we will send an email to the email address we have on file for you. Any changes to these Terms of Use will be effective immediately for new dealers and customers and will be effective thirty (30) days after posting notice of such changes on the Website for existing users. Threat Extinguisher may require you to provide consent to the updated Terms of Use in a specified manner for further use. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the applications and products. Otherwise, your continued use of the applications and products constitutes your acceptance of such change(s).
In addition, your use of certain applications and products may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in these Terms of Use or will be presented to You for your acceptance when you sign up to use the particular service. If these Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to the particular service to which they apply. These Terms of Use and any applicable Supplemental Terms are referred to herein as the “Agreement”.

1. OVERVIEW​

1.1 Our Service. Threat Extinguisher offers the Threat Alert System that integrates with the individual items of software and hardware that have been provisioned. The Threat Alert System applications and devices provide a set of actions that can take place during an event as a stand alone system. Additional integration to third party devices is possible such as alarm systems, fire systems, and door access control through a relay unit. Certain services and functionalities in server software purchase may be provided. However, THREAT EXTINGUISHER may, in its sole discretion, charge fees in connection with certain devices or software, such as by limiting the number of connections or devices (as defined below) this may be performed without notice.

1.2 Service Email and Internet Access. Threat Extinguisher offers the Threat Alert System which requires Internet access and a valid “Service Email Address” configured by the installing company. This “Service Email Address” is used to provide updates to the installing company and to register the customer site with Threat Extinguisher. Threat Extinguisher LLC will make all attempts to notify the registered installing company when the terms and conditions have been modified. It is the responsibility of the installing company to then provide their own customers with notification of updated terms and conditions. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the applications and products. Otherwise, your continued use of the applications and products constitutes your acceptance of such change(s).

1.3 Threat Alert System Server Hardware. Threat Extinguisher offers the Threat Alert System which requires a server to be installed on-premise at the customers site. This server is the property of Threat Extinguisher LLC and remains the property of Threat Extinguisher LLC as long as the system is installed and in use.  If the system is ever removed from the customers site the server hardware must be returned to Threat Extinguisher immediately upon removal at the installing companies expense.

1.4 YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE THREAT ALERT SYSTEM IS A SUPPLEMENTARY RESOURCE AND IS NOT DESIGNED OR INTENDED TO REPLACE TRADITIONAL EMERGENCY RESPONSE SYSTEMS. YOU AGREE TO MAINTAIN ALTERNATIVE METHODS OF COMMUNICATION AND TAKE FULL RESPONSIBILITY FOR THE SAFETY AND SECURITY OF YOUR PREMISES.

YOU ACKNOWLEDGE AND AGREE THAT THE THREAT ALERT SYSTEM DOES NOT GUARANTEE THE PREVENTION OF ANY EVENT, INCLUDING LIFE-THREATENING INCIDENTS, AND THAT IT IS MERELY A RESOURCE TO ENHANCE YOUR SAFETY PROTOCOLS.

YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS THREAT EXTINGUISHER, ITS AFFILIATES, EMPLOYEES, AND AGENTS FROM AND AGAINST ANY CLAIMS, DAMAGES, OR LOSSES ARISING FROM OR RELATING TO YOUR USE OR MISUSE OF THE SYSTEM.

2. LICENSED USES AND RESTRICTIONS​

2.1 Threat Extinguisher Software. Use of any software and associated documentation that is made available via download or that is embedded in any THREAT EXTINGUISHER hardware (“Software”) is governed by these Terms of Use, and by any applicable license agreement made available by THREAT EXTINGUISHER in connection with, or otherwise accompanying, the Software. Such license terms may be posted with the Software downloads or at the website page where the Software can be accessed. By accessing, using, downloading or installing any Software that is accompanied by or includes a license agreement, you are agreeing to be bound by the terms of such license agreement. At no time will THREAT EXTINGUISHER provide you with any tangible copy of our Software. THREAT EXTINGUISHER shall provide access to the Software via electronic transfer or download and shall not deliver any tangible media in connection with the (a) delivery, installation, updating or problem resolution of any Software (including any new releases); or (b) delivery, correction or updating of documentation. For the purposes of this section, tangible media shall include, but not be limited to, any tape, disk, compact disk, card, flash drive, or any other comparable physical medium. Unless the accompanying license agreement expressly allows otherwise, any copying of, modification of, or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, or redistribution or use on a service bureau basis. If there is any conflict between this Agreement and the license agreement, the license agreement shall take precedence in relation to that Software. When no separate license agreement is made available with respect to particular Software, then the license terms in these Terms of Use will apply to such Software. If the Software is a pre-release version, then, notwithstanding anything to the contrary included within an accompanying license agreement, you are not permitted to use or otherwise rely on the Software for any commercial or production purposes. Subject to your compliance with this Agreement, THREAT EXTINGUISHER grants you a non-assignable, non-transferable, non-sublicensable, revocable, non-exclusive license to use the Software for the sole purpose of enabling you to use the Threat Alert System, devices, and products sold by Threat Extinguisher in the manner permitted by this Agreement. Some Software may include open source components that are offered under a separate open source license that we will make available to you upon request. Your use of the open source components of the Software is governed by the terms of the applicable open source license agreement and not by these Terms and Conditions.

2.2 Restrictions. You agree that you will not, and will not assist, permit, authorize, or enable others to, do any of the following (each, a “Restriction”) without our express written consent: (i) reverse engineer, modify decompile the Software or any component thereof in any way, or attempt to create a substitute or similar service through use of or access to the Software  (ii) copy, rent, lease, sell, transfer, assign, sublicense, or alter any part of the software including but not limited to the following: Threat Extinguisher Threat Alert System server software; Threat Extinguisher Threat Alert System manager client; Threat Extinguisher Threat Alert System desktop (“Basic”) client; all firmware, and any hardware products; (iii) use Threat Extinguisher’s name to endorse or promote any product; (iv) use the Threat Extinguisher Properties which include the Threat Alert System, Threat Extinguisher Hardware, or Threat Extinguisher Software or any product sold by Threat Extinguisher for any illegal, unauthorized, or otherwise improper purposes, or in any manner which would violate this Agreement; (v) remove any legal, copyright, trademark, or other proprietary rights notices contained in or on the THREAT EXTINGUISHER Properties; (vi) use the THREAT EXTINGUISHER Properties in a manner that, as determined by THREAT EXTINGUISHER, in our sole discretion, exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of the THREAT EXTINGUISHER Properties documentation; (vii) imply inaccurate creation, affiliation, sponsorship, or endorsement of you; or (viii) use the THREAT EXTINGUISHER properties on or in connection with any website.

2.3 Updates and Modifications. THREAT EXTINGUISHER may, at its sole discretion, release subsequent versions of the THREAT EXTINGUISHER Software and THREAT ALERT SYSTEM SOFTWARE and underlying data and transmit new code and data to the devices you currently have in service from THREAT EXTINGUISHER to obtain and use the most current version. Before major modifications are made and deployed to the THREAT ALERT SYSTEM, or THREAT EXTINGUISHER PRODUCTS, Threat Extinguisher will provide you sufficient advanced notice along with technical support needed to enable you to make the necessary modifications to your software to insure continued compatibility. If a subsequent version is unacceptable to you, you may discontinue use of the THREAT EXTINGUISHER SOFTWARE AND HARDWARE at any time by simply removing the software and hardware from the installed facility. If you continue to use the Software or Hardware, you will be deemed to have accepted any modifications and new versions. 

2.5 Usage Limitations. The Threat Alert System does not impose any usage limitations as to the number of activations per month or desktop messages sent per month. Other Threat Extinguisher products may have limitations and restrictions.

3. USE

3.1 Device Policy. You are solely responsible and liable for the devices installed and connected to Threat Extinguisher Properties including but not limited to the Threat Alert System, and for supporting, maintaining, testing, and verifying these devices are functional. You represent and warrant that your usage of the device(s) will not: (i) violate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) violate any laws or regulations (including any privacy laws) or any obligations or restrictions imposed by any third party; (iii) be harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, or patently offensive, or promote racism, bigotry, hatred, or physical harm of any kind against any group or individual, or be otherwise objectionable; (iv) be harmful to minors in any way; (v)be modified to contain any computer viruses, worms, or any software intended to damage or alter a computer system or data; (vi) be used in making or as part of a harmful device.

3.2 Unauthorized Applications. You understand that the THREAT EXTINGUISHER Properties are not designed, intended, authorized or warranted to be suitable for use in the following “Unauthorized Applications”: life support, fire, or any life critical applications, devices or systems; the operation of nuclear facilities; aircraft navigation systems; aircraft communication systems; air traffic control; direct life support machines; weapons systems; military or space equipment requiring radiation hardened components; and 911, Enhanced 911 or E911 emergency calling systems. You warrant that you will not use the THREAT EXTINGUISHER Properties for any of these Unauthorized Applications.

3.3 You understand that the Threat Alert System is designed to communicate through various possible technologies. THREAT EXTINGUISHER does not provide, maintain or support the availability or reliability of the communications layer to the network or internet that is required for the Threat Alert System to function. You fully assume all responsibility for ensuring local network communication and access to the internet for the Threat Alert System and its devices in order to use its functionality. Under no circumstances will THREAT EXTINGUISHER be responsible for an inability to access the local area network or internet due to a failure in facilities, equipment or connectivity required to access the local area network or internet.

4. OWNERSHIP​

4.1 Ownership. As between you and THREAT EXTINGUISHER, THREAT EXTINGUISHER owns all right, title and interest in and to the THREAT EXTINGUISHER Properties, including any mapping data accessed by virtue of the Software, and all Intellectual Property Rights embodied therein or related thereto. Except for the licenses granted in Sections 2.1 (Threat Extinguisher Software), this Agreement grants you no right, title, or interest in any intellectual property owned or licensed by us, including Software and Trademarks and Brand Features (as defined below). You agree to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices and restrictions contained in this Agreement. We claim no responsiblity or control over your devices or  or the content sent, posted or displayed through your Device, except for any THREAT EXTINGUISHER Properties therein. “Intellectual Property Rights” shall mean any and all rights existing under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.

4.2 Trademark License and Brand Features. For purposes of these Terms of Use, “Trademarks and Brand Features” shall be defined as the trademarks, trade names, service marks, logos, and domain names, along with any other distinctive brand features, of each party. THREAT EXTINGUISHER hereby grants to you a non-transferable, non-sublicenseable, non-exclusive, limited license during the term of these Terms of Use to display THREAT EXTINGUISHER’s Trademarks and Brand Features solely for the purpose of promoting or advertising that you use the THREAT EXTINGUISHER Properties in accordance with these Terms of Use. You hereby grant to THREAT EXTINGUISHER a nontransferable, nonexclusive license during the term of these Terms of Use to use your Trademarks and Brand Features to advertise that you are using the THREAT EXTINGUISHER Properties and to the extent as may be necessary for THREAT EXTINGUISHER to provide you with the THREAT EXTINGUISHER Software. You understand and agree that THREAT EXTINGUISHER has the sole discretion to determine whether your use of THREAT EXTINGUISHER Trademarks and Brand Features is in accordance with THREAT EXTINGUISHERS’ standards for Trademark and Brand Features usage and that you will immediately cease or modify such usage as directed by THREAT EXTINGUISHER. Except as set forth in this Section 7, nothing in these Terms of Use shall grant or shall be deemed to grant to one party any right, title or interest in or to the other party’s Trademarks and Brand Features. You agree, however, not to remove, obscure, distort, or alter any of our Trademarks and Brand Features or display our Trademarks and Brand Features in any way that is misleading, defamatory, infringing, libelous, disparaging, obscene, or otherwise objectionable to THREAT EXTINGUISHER. All use by you of the Trademarks and Brand Features (including any goodwill associated therewith) will inure to the benefit of THREAT EXTINGUISHER. At no time during or after the term of this Agreement will you challenge or assist others to challenge THREAT EXTINGUISHERS’ Trademarks and Brand Features (except to the extent such restriction is prohibited by law) or the registration thereof by THREAT EXTINGUISHER, nor will you attempt to register any trademarks that are confusingly similar in any way to any THREAT EXTINGUISHER Trademarks and Brand Features. You must submit to us a copy or image of any media release or advertising that includes any of THREAT EXTINGUISHER Trademarks and Brand Features by emailing us at sfasone@threatextinguisher.com, and any such use is subject to our prior approval.

5. RELATIONSHIP​

5.1 Marketing. We may publicly refer to you, orally or in writing, as a THREAT EXTINGUISHER Properties licensee and/or as a customer of THREAT EXTINGUISHER and we may publish your name and logo on the THREAT EXTINGUISHER website or promotional materials without prior written consent. You grant us all necessary rights and licenses to do so.
5.2 Support. We may provide you with support, upgrades, or modifications for the THREAT EXTINGUISHER Properties in accordance with our service level agreement set forth at https://wwww.threatextinguisher.com In the event we provide any support, it will be considered part of the THREAT EXTINGUISHER Properties for purposes of Section 9 (Disclaimer and Liability) and Section 10 (Indemnification) below, and we may terminate the provision of such support or modifications to you at any time without notice or liability to you. You understand and agree that you are solely responsible for providing user support and any other technical assistance for your Threat Alert System, devices, and Threat Extinguisher Products. We may redirect users and potential users of sold Threat Extinguisher Properties to your email address on file for purposes of answering general inquiries and support questions and support of Threat Extinguisher Properties.
5.3 Independent Development. You acknowledge and agree that THREAT EXTINGUISHER may be independently creating applications, content and other products and services that may be similar to or competitive with your Threat Alert System and Devices and its content, and nothing in this Agreement will be construed as restricting or preventing THREAT EXTINGUISHER from creating and fully exploiting such applications, content and other items, without any obligation to you. If you elect to provide us with any comments, suggestions, or feedback related to our THREAT EXTINGUISHER Properties, you assign all right, title and interest in and to such comments, suggestions and feedback to us, and acknowledge that we will be entitled to use, implement and exploit any such feedback in any manner without restriction, and without any obligation of confidentiality, attribution, accounting, or compensation or other duty to account.

6. FEES AND PAYMENT TERMS​

6.1 Payment. You agree to pay all fees or charges to your Account in accordance with the applicable fees, charges and billing terms in effect at the time a fee or charge is due and payable. Users must provide THREAT EXTINGUISHER with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”). By providing THREAT EXTINGUISHER with your credit card number and associated payment information, you agree that we are authorized to immediately invoice your Account for all fees and charges due and payable to THREAT EXTINGUISHER hereunder, including for any recurring fees, and that no additional consent is required. You agree to immediately notify us of any change in your billing address or credit card used for payment hereunder. We reserve the right at any time to change our prices and billing methods, either immediately upon posting on the Website or by e-mail notice to you
6.2 Automatic Renewal. You will be responsible for payment of the applicable fee for the THREAT EXTINGUISHER Properties (each, a “Service Subscription Fee”) at the time you create your Account and select your monthly or annual package (each, a “Service Commencement Date”). Except as set forth herein, all fees for the THREAT EXTINGUISHER Properties are non-refundable. Your subscription will continue indefinitely until terminated in accordance with the terms herein. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically renew on the first day following the end of such period (each, a “Renewal Commencement Date”) and continue for an equivalent period, at ‘THREAT EXTINGUISHER’ then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription by providing written notice of cancellation to THREAT EXTINGUISHER at least thirty (30) days prior to the Renewal Commencement Date. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; and your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.
6.3 Pricing. In the event that you wish to increase the number of Devices beyond the maximum number of Devices for which the applicable fees have been paid, you will be required to pay additional fees associated with the increased number of Devices, prorated for the remainder of the then-current subscription term if applicable.
6.4 Taxes. THREAT EXTINGUISHERS’ fees are net of any applicable sales or use tax (“Sales Tax”). If any THREAT EXTINGUISHER Properties, or payment for any THREAT EXTINGUISHER Properties, under this Agreement are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to THREAT EXTINGUISHER, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority.

7. TERM AND TERMINATION​

7.1 Term. You agree that this Agreement will be deemed to be in effect upon the date on which you accept this Agreement, in accordance with the preamble.
7.2 Suspension and Termination. We may change, suspend, or discontinue the availability or any functionality of the THREAT EXTINGUISHER Properties, or any aspect of your access to the THREAT EXTINGUISHER Properties, at any time without notice to you and without incurring any liability to you. We may also impose limits on certain features and services or restrict your access to part or all of the THREAT EXTINGUISHER Properties without notice to you and without incurring any liability to you. Furthermore, THREAT EXTINGUISHER may limit, suspend, or terminate your use of the THREAT EXTINGUISHER Properties (and your rights under this Agreement) at any time. In addition, this Agreement will terminate automatically and without notice immediately upon any breach of the terms of this Agreement by you.
7.3 Your Termination. You may terminate this Agreement for any reason or no reason at all, at your convenience, by ceasing your use of the THREAT EXTINGUISHER Properties, and providing at least thirty (30) days prior written notice to THREAT EXTINGUISHER.
7.4 Effect on Termination. Upon termination of this Agreement: (i) all rights and licenses granted will terminate immediately; (ii) any and all payment obligations, if any, will be due; (iii) you shall immediately cease all use and display of any and all THREAT EXTINGUISHER Trademarks and Brand Features; (iv) you shall immediately cease all use of the THREAT EXTINGUISHER Properties and (v) each party will promptly return to the other party all Confidential Information of such party in its possession, custody, or control. If you desire to terminate the Terms of Use, You must remove the THREAT EXTINGUISHER Software and accompanying configuration, documentation and hardware and all devices from the premises and email option to buy back at fair value used equipment to sfasone@threatextinguisher.com. Neither party will be liable to the other party for damages of any sort resulting solely from the termination of this Agreement. Notwithstanding clause 7.4(i), THREAT EXTINGUISHER’ sole obligation as it relates to copies of, or references or links to, your installation will be to, upon written request from you, make commercially reasonable efforts, as determined in its sole discretion, to remove all such references and links.
7.5 Deletion of Data. THREAT EXTINGUISHER will use reasonable efforts to delete your password, name, payment information and all related information associated with or inside your Account (or any part thereof), excluding data related to past transactions, upon termination of this Agreement.
7.6 Survival. Sections 4.1 (Ownership), 4.2 (Brand Features), 5.3 (Independent Development), 6 (Fees and Payment Terms), 7.6 (Survival), and 8 (Confidentiality) through 11 (General) will survive any termination of this Agreement.

8. CONFIDENTIALITY​

8.1 Ownership. “Confidential Information” means all written and oral information, disclosed or made available by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information. All Confidential Information is proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party. Each Party agrees as follows: (i) to use the Confidential Information only for the purposes described herein; (ii) that such Party will not reproduce the Confidential Information and will hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (iii) that, except as required in performance of a Party’s obligations under this Agreement, neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (iv) to restrict access to the Confidential Information to such of its personnel, agents and consultants, if any, who have a need to have access and who have been advised of and have agreed in writing or are otherwise bound to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement. In the event of any unauthorized disclosure or loss of Confidential Information, the receiving Party will notify the disclosing Party as soon as possible.
8.2 Exceptions. The foregoing provisions will not apply to Confidential Information that: (i) is or becomes generally publicly available or enters the public domain through no fault of the receiving Party; (ii) is rightfully communicated to the receiving Party by persons not bound by confidentiality obligations with respect thereto; (iii) is already in the receiving Party’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (iv) is independently developed by the receiving Party without use or reference to the Confidential Information of the disclosing Party; or (v) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (1) to comply with the order of a court or other governmental body or applicable law, provided the Party making the disclosure pursuant to the order will first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (2) to establish a Party’s rights under this Agreement.

9. DISCLAIMER AND LIABILITY​

9.1. THE THREAT EXTINGUISHER PROPERTIES ARE PROVIDED ‘AS IS,’ ‘WHERE IS,’ AND ‘WITH ALL FAULTS,’ WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED. THREAT EXTINGUISHER EXPLICITLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SECURITY, TITLE, AND NON-INFRINGEMENT. CERTAIN ASPECTS OF THE THREAT EXTINGUISHER PROPERTIES ARE EXPERIMENTAL AND HAVE NOT UNDERGONE TESTING. WE DO NOT REPRESENT, WARRANT, OR GUARANTEE THAT THE THREAT EXTINGUISHER PROPERTIES ARE FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR THAT THEY ARE RELIABLE, ACCURATE, COMPLETE, OR VALID.

THREAT EXTINGUISHER AND THREAT EXTINGUISHER PROPERTIES ARE NOT LIABLE FOR ANY LOSS OF LIFE, INJURY, HARM, OR LOSS OF SECURITY OR SENSE OF SECURITY THAT MAY OCCUR FROM THE USE, ATTEMPTED ACTIVATION, ACTIVATION, PROPER OR IMPROPER INSTALLATION, OR CONTENT OBTAINED THROUGH THE THREAT EXTINGUISHER PROPERTIES. USERS OBTAIN OR INFER SUCH AT THEIR OWN DISCRETION AND RISK. YOUR USE OF THE THREAT EXTINGUISHER PROPERTIES IS ENTIRELY AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT ARISES, INCLUDING BUT NOT LIMITED TO DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA. NO ADVICE OR INFORMATION PROVIDED BY US, WHETHER ORAL OR WRITTEN, WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THESE TERMS OF USE.”

9.2. THREAT EXTINGUISHER MAKES NO WARRANTY THAT THE THREAT EXTINGUISHER PROPERTIES WILL MEET YOUR REQUIREMENTS OR THAT THE THREAT EXTINGUISHER PROPERTIES WILL BE UNINTERRUPTED, FUNCTION AS EXPECTED, TIMELY, BUG-FREE, SECURE, OR ERROR-FREE. THREAT EXTINGUISHER PROPERTIES IS PROVIDED “AS IS” AND WITHOUT ANY GUARANTEES OF PERFORMANCE.

9.3 Limitation of Liability. THREAT EXTINGUISHER WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, SPECIAL, OR RELIANCE DAMAGES RELATED TO THESE TERMS OF USE OR THE THREAT EXTINGUISHER PROPERTIES. CONSEQUENTIAL DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOST PROFITS, LOST REVENUES, DISTRESS OF ANY TYPE, AND LOST BUSINESS OPPORTUNITIES, WHETHER YOU WERE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES. IN NO EVENT WILL OUR AGGREGATE LIABILITY UNDER THESE TERMS OF USE OR RELATED TO THE THREAT EXTINGUISHER PROPERTIES EXCEED THE AMOUNTS PAID BY YOU TO THREAT EXTINGUISHER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE ACT(S) GIVING RISE TO LIABILITY HEREUNDER. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. YOU ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY SET OUT HEREIN ARE FUNDAMENTAL TO THE TRANSACTIONS CONTEMPLATED HEREIN AND THAT THREAT EXTINGUISHER WOULD PRICE ITS SOFTWARE AND SERVICES SIGNIFICANTLY HIGHER WITHOUT SUCH LIMITATIONS.

10. INDEMNIFICATION​

10.1 By You. You will defend, indemnify and hold harmless THREAT EXTINGUISHER and its affiliates, and their respective directors, officers, agents, licensors, and other partners and employees from and against any loss, cost, liability and expense (including reasonable attorneys’ fees and court costs) incurred by THREAT EXTINGUISHER and arising from or in any way related to your Threat Alert System and Devices, your use of the THREAT EXTINGUISHER Properties, or your breach of any representation, warranty, covenant, or obligation under these Terms and Conditions, including any liability or expense arising from any claim, suit, demand, proceeding or legal action instituted or made against THREAT EXTINGUISHER.
10.2 By THREAT EXTINGUISHER. THREAT EXTINGUISHER will, at its expense, defend or, at its option, settle any claim, action or allegation brought against you alleging that the THREAT EXTINGUISHER Properties infringe any valid copyright, United States patent or misappropriate a trade secret of a third party and will pay any resulting final, non-appealable judgments. You will give prompt written notice to us of such a claim and you will give us the exclusive right to defend any such claim, action, or allegation and or to make settlements thereof at our discretion. You will give such assistance and information as we may reasonably require to settle or to oppose such claims. This Section 10.2 applies only to the extent that you have a Premium Account, and THREAT EXTINGUISHER has no obligations hereunder in regard to infringement claims brought in regard to THREAT EXTINGUISHER Properties used pursuant to a Trial Account. This Section 10.2 provides your exclusive remedy, and our sole obligations, with respect to any infringement claims.
10.3 Options. In the event any infringement claim, action or allegation is brought or threatened, we may, at our sole option and expense: (i) procure for you the right to continue use of the THREAT EXTINGUISHER Properties or infringing part thereof; (ii) modify or amend the THREAT EXTINGUISHER Properties or infringing part thereof, or replace the THREAT EXTINGUISHER Properties or infringing part thereof with similar functionality; or (iii) if neither of the preceding is commercially practicable terminate the Agreement and the licenses granted herein.
10.4 Exclusions. This indemnification obligation will not apply if the infringement arises as a result of (i) any use of the THREAT EXTINGUISHER Properties in a manner other than as specified in this Agreement, (ii) any use of the THREAT EXTINGUISHER Properties in combination with other products, equipment, devices, systems, or data not supplied by us to the extent such claim is directed against such combination, or (iii) any alteration, modification, or customization of the THREAT EXTINGUISHER Properties made by any party other than THREAT EXTINGUISHER or our authorized representative.

11. RESTRICTIONS ON USE​

11.1 In the event that you are located outside of the United States, or you are operating is running on a server located outside of the United States, you agree to comply with any laws, rules or regulations in your locale or in the location of your web server regarding online conduct and acceptable content, including laws regulating the export of data to the United States or your country of residence.

12. GENERAL​

12.1 Entire Agreement. This Agreement constitutes the entire agreement between you and THREAT EXTINGUISHER and governs your use of the THREAT EXTINGUISHER Properties. If, through accessing or using the THREAT EXTINGUISHER Properties, you utilize or obtain any product or service from a third party, you may additionally be subject to such third party’s terms and conditions applicable thereto, and this Agreement will not affect your legal relationship with such third party. THREAT EXTINGUISHER shall have no liability in regard to your access to or use of any such third party product or service.
12.2 Relationship of Parties. The Parties hereto are independent contractors. Nothing in this Agreement will be deemed to create an agency, employment, partnership, fiduciary, or joint venture relationship between the Parties. Neither Party is the representative of the other Party for any purpose and neither Party has the power or authority as agent, employee, or in any other capacity to represent, act for, bind, or otherwise create or assume any obligation on behalf of the other Party for any purpose whatsoever.
12.3 Governing Law. This Agreement will be governed in accordance with the laws of the State of Ohio without reference to its conflicts of law principles. The Parties agree that the exclusive jurisdiction of any actions arising out of this Agreement will be in the state or federal courts, as applicable, located in Franklin County, Ohio, without regard to conflicts of laws principles.
12.4 Severability. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such term or provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
12.5 Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the THREAT EXTINGUISHER Properties or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
12.6 Assignment. Neither Party may assign this Agreement or any of its rights or obligations hereunder, to a third party without the other Party’s written consent, except that a Party may assign this Agreement without such consent as a consequence of a merger, consolidation, reorganization, or sale of substantially all of its assets or of the business to which this Agreement pertains. Any assignment in violation of the foregoing is null and void. This Agreement inures to the benefit of and is binding upon the Parties hereto and their successors and assigns.
12.7 Waiver. Failure to enforce or a waiver by either Party of one default or breach of the other Party will not be considered to be a waiver of any subsequent default or breach.
12.8 Notices. All notices required or permitted hereunder will be in writing, delivered personally, by email, or by nationally recognized overnight courier (e.g., FedEx) at the Parties’ respective addresses set forth herein or maintained in your Account. All notices will be deemed effective upon personal delivery, or when received if sent by email or overnight courier. You agree that THREAT EXTINGUISHER may send any privacy or other notices, disclosures, reports, documents, communications and other records regarding the Service (collectively, “Notices”) in electronic form to: (1) the email address that you provided during configuration. The delivery of any Notice is effective when sent by THREAT EXTINGUISHER, regardless of whether you read the Notice when you receive it or whether you actually receive the delivery. You can withdraw your consent to receive Notices electronically by canceling your service. You must give notice to us in writing via email to sfasone@threatextinguisher.com or another address otherwise expressly provided.
12.9 Force Majeure. Neither party will be liable to the other for failure to fulfill obligations hereunder if such failure is due to causes beyond its control, including acts of God, earthquake, fire, flood, embargo, catastrophe, sabotage, utility or transmission failures, governmental prohibitions or regulations, national emergencies, insurrections, riots or war.

12.10 Government End Users. The THREAT EXTINGUISHER Properties, including any associated hardware, are “commercial computer software” and any associated documentation is “commercial computer software documentation,” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display, or disclosure of the THREAT EXTINGUISHER Properties, including hardware, or such documentation by the United States Government will be governed solely by the terms of this Agreement.

12.11 Remedies. All rights and remedies of the parties, under this Agreement, in law or at equity, are cumulative and may be exercised concurrently or separately. The exercise of one remedy will not be an election of that remedy to the exclusion of other remedies. A party’s breach or threatened breach of any of its covenants or agreements in this Agreement may cause irreparable injury that is inadequately compensable in monetary damages. You acknowledge that your breach of THREAT EXTINGUISHERS’ Software/Hardware license restrictions contained herein may cause irreparable harm to THREAT EXTINGUISHER. Accordingly, you agree that, in addition to any other remedies to which THREAT EXTINGUISHER may be legally entitled, THREAT EXTINGUISHER shall have the right to seek immediate injunctive relief in the event of a breach of such sections by you or any of your officers, employees, consultants or other agents.