ENFLUX TERMS OF SERVICE

These Enflux Terms of Service (these “Terms of Service”) are between Estia, Inc. dba Enflux (“Enflux” or “we”) and the Customer identified below (the “Customer” or “you”) and are effective as of the Effective Date below. You and Enflux are sometimes referred to herein as the “parties” and each a “party”. By signing below, the duly authorized representative of each party represents and warrants that it has full power and authority to enter into these Terms of Service and agrees that such party will be bound by all of the terms and conditions of the Agreement.

  1. DEFINITIONS. 
  1. Agreement” means, collectively, as amended, modified, or supplemented, these Terms of Service, any Order, the ExamSoft Confirmation (defined below), and any other addenda thereto. The Agreement is the contract that governs your access to the Services.
  2. Intellectual Property Rights” means any and all intellectual property rights recognized in any jurisdiction worldwide, including rights in copyrights, trade secrets, patents and other intellectual property, including all related applications and registrations.
  3. Enflux Technology” means the Enflux software and any other Enflux products made available to you for your use as part of the Services, including any related interfaces, dashboards, reporting features, tools or other machine instructions, and all other software, materials, information, methodology, and technology used by Enflux to provide the Services, including all modifications and derivative works of any of them, and all related documentation.
  4. Marks” means any trademark, service mark, trade name, trade dress, or like indicia used to identify the source of goods or services.
  5. Order” means any order or other ordering document that is signed or submitted by you and accepted by Enflux, including (i) an order form provided to you by Enflux for your signature, or (ii) a web form submitted by you on the Site.
  6. Services” means Enflux’s online data analytics dashboard software and services.
  7. Site” means www.enflux.com, or any other website operated by Enflux for the purpose of offering or providing Services, including any subdomains.
  8. Term” means, collectively, the initial term and any renewal term of your Order(s).
  9. Third Party Service” means, collectively, any services provided by a third party and used in connection with the Services, including your ExamSoft, Canvas, and/or CORE environments.
  1. SERVICES.
  1. Services. Enflux agrees to provide the Services for the Term on the terms and conditions, and subject to restrictions, contained in the Agreement.  Enflux will begin providing your Services following the successful migration of your data to the Enflux Services environment.
  2. Implementation.  You agree to use reasonably diligent efforts to promptly migrate your data to the Services environment. Each party will appoint a technically proficient individual to serve as a contact during the migration of Your Data to the Services environment. Your delay in providing your Data will not extend the times for payment stated in the Order.
  3. Changes to the Services. You agree that your purchase of the Services is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Enflux regarding future functionality or features. You acknowledge that Enflux may modify, suspend, or change any of its Services offerings at any time. If any such modification, suspension, or change materially and adversely affects your use of the Services, you may terminate the Agreement by giving written notice of the change no later than 30 days following the date of the change and will be entitled to receive a pro-rata refund of any prepaid Fees as your sole and exclusive remedy.
  1. USERS.  You are solely responsible for managing and administering your user accounts for you, your affiliates, and your and their personnel (“Users”), including granting and revoking access and maintaining the user permissions and authentication credentials for your account. Each User must have a separate log in. You authorize Enflux to act on the instructions of any User who authenticates using your account credentials. You may not authorize anyone to use the administrative features of your Services account other than your employees and individual contractors under your direct supervision. You are responsible for the use of the Services by any person you authorize to use the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions. You are solely responsible for ensuring your Users’ use of the Service is in compliance with the Agreement and all applicable laws.
  2. CUSTOMER DATA. 
  1. Ownership of Your Data. As between Enflux and you, you shall retain all ownership and rights in and to the data that you or your Users transmit, modify, or store using the Services, including any data transmitted from your Third Party Service environments into the Services environment (such data, “Your Data”), provided that you grant to Enflux the limited rights in the Your Data that are reasonably necessary for Enflux to provide the Services. Notwithstanding the foregoing, Your Data does not include any: (i) system-generated data about your use of the Services, such as resource utilization and user behavior, or (ii) Aggregate Data (defined below).
  2. Aggregate Data. Enflux may aggregate Your Data with similar data from public or private data sets, including aggregate data of Enflux’s other customers, and use, commercialize, and publish the resulting data sets and insights derived from the analysis of the resulting data sets (“Aggregate Data”), including disclosure of the geographies, institution types, and other attributes of the institutions whose data is included in the data sets, provided that: (i) if the data used to create the Aggregate Data includes any personal data (such as personally identifiable information covered by FERPA), Enflux either excludes such data from the data set, or de-identifies the data in accordance with applicable regulatory standards, and (ii) Enflux removes from the data set any information that identifies you.
  1. AVAILABILITY. Enflux shall use commercially reasonable efforts to make the Services available 24 hours per day, 7 days per week, 365 days per year, excluding unavailability due to reasonable maintenance.  Enflux shall respond to your requests for technical assistance in the use of the Services in a reasonably prompt manner during its regular business hours.
  2. ACCESS AND USE RESTRICTIONS.  Enflux provides the Services and Enflux Technology subject to the following conditions and restrictions: (a) you will not publish any benchmarking or other performance analysis of the Services or Enflux Technology; (b) you will not reverse engineer or attempt to discover any underlying algorithm or method embodied by the Enflux Technology except to the extent applicable law permits such activity notwithstanding this limitation (and then on 30 advance written notice to Enflux); (c) you will use the Services and Enflux Technology only for your internal business purposes; (d) you will not permit anyone other than your personnel to have access to your Services account or the administrative features of your Services; (e) you will not modify or create derivative works of the Services or Enflux Technology or remove any proprietary notice on the Enflux Technology; (f) you will not access the Enflux Technology for the purpose of creating a competing service, or to monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes; and (g) you will not use or attempt to use the Services in a way that undermines Enflux’s ability to correctly calculate its fees Enflux may suspend or terminate your or any of your User’s access to the Service for violations of this Section.
  3. TRIAL/EVALUATION SERVICES. Section 14 (Warranty) is not applicable during the term of any Order for an “evaluation,” “proof of concept,” or “trial use,” or like term (an “Evaluation”), but all other parts of the Agreement are applicable to an Evaluation.
  4. INTEGRATIONS. 
  1. Integration Features. The Service includes features that enable you to import certain data from third-party services (“Integration Features”). Enflux does not endorse any service for which it offers an Integration Feature, including any ExamSoft features, and makes no commitment to you regarding those services.
  2. APIs. If Enflux provides any application programming interfaces (“APIs”), such API(s) are licensed to you solely on a limited, non-exclusive basis for your use only in connection with the Enflux Services as permitted by the Agreement, and subject to all of the restrictions and conditions applicable to Enflux Technology stated in the Agreement. You acknowledge that Enflux’s integration features may be unavailable or may not work properly if the service provider’s API is unavailable or if the service provider modifies its API or services in a way that impacts the Enflux integration feature. Enflux will use commercially reasonable efforts to attempt to modify its integration features to maintain compatibility with service provider’s APIs and services. However, if we are not able to maintain compatibility through the use of commercially reasonable efforts or if there is a change in the service that creates an unreasonable cost or operational burden to Enflux, we may discontinue support for the integration without liability to you. Your obligations under the Agreement, for payment of Fees and otherwise, are not conditioned on the continued availability of any Integration Features or APIs.
  3. ExamSoft Data. If you have asked Enflux to obtain data from your ExamSoft environment in order to perform the Enflux Service, you hereby authorize ExamSoft, Inc. (“ExamSoft”) to give Enflux access to that data as provided in the ExamSoft Client Confirmation at www.enflux.com/client-confirmation/ (the “ExamSoft Consent”) and agree to the other terms, conditions and restrictions stated in the ExamSoft Consent.  For clarity, your ExamSoft data, when accessed by Enflux, is “Your Data” as that term is defined above and is subject to the restrictions on use and other protective terms of this Agreement.
  4. Other Third Party Service Consents. You acknowledge that Third Party Services do not form part of the Services and that your use of the Third Party Services is subject to your agreement with the relevant Third Party Service provider. If you have asked Enflux to obtain data from your Canvas, CORE, or other Third Party Service environment in order to perform the Enflux Service, you hereby authorize such Third Party Service to give Enflux access to that data as provided in a client confirmation or consent (each, a “Third Party Service Consent”) and agree to the other terms, conditions and restrictions stated in the such Third Party Service Consent.  For clarity, your Third Party Service data, when accessed by Enflux, is “Your Data” as that term is defined above and is subject to the restrictions on use and other protective terms of this Agreement.
  5. Other Data Ingestion. If Enflux extracts data from your raw data files or other source documents or via data scraping, we may use automated or other methods to extract such data. Enflux does not warrant the accuracy of any such extracted data. You are responsible for interpreting data and any actions are taken. You authorize Enflux to use all extracted data to provide the Services and to improve its products, services, and operations generally.
  1. DATA SECURITY AND PRIVACY.
  1. Enflux Security Obligations. Upon your request, Enflux will make available to you its materials describing its security safeguards and related audit and compliance reports (the “Security Materials”). You acknowledge that the Security Materials are Enflux’s sensitive Confidential Information and may be shared only with your personnel and professional advisors and consultants on a need-to-know basis. You are responsible for determining if Enflux’s security safeguards meet any regulatory requirements applicable to you and otherwise meet your business and security requirements.
  2. Your Security Obligations. You must use reasonable security precautions in connection with your use of the Services, such as requiring your personnel and users to establish reasonably secure passwords and using commercially reasonable efforts to protect your systems and data from malware. You acknowledge that Enflux is not responsible to you for you or your Users’ failure to use good password security. You agree that you are responsible under the Agreement for any action taken using your account credentials, even if the action was not authorized by you. Enflux is not responsible for any harm or damages resulting from a security incident or other unauthorized disclosure of unencrypted personal data or other sensitive data that you store or manage using the Services, except to the extent that any such disclosure results from Enflux’s breach of Section 7.1 (Enflux Security Obligations). You must maintain a backup of Your Data in a secure location separate from the Services environment.
  3. FERPA. If Enflux receives any personally identifiable student information to which the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g; 34 C.F.R. Part 99.33(a), as amended (“FERPA”), applies from you in its performance of its obligations under the Agreement, Enflux will maintain the confidentiality of such information in compliance with FERPA, including, but not limited to, its implementing regulations at 34 C.F.R. § 99.31 and § 99.33. You will be responsible for conveying notification on behalf of Enflux to students (or, if applicable, to the student’s parent) of any judicial order or lawfully-issued subpoena requiring the disclosure of Your Data in Enflux’s possession as may be required under applicable law.
  1. FEES AND PAYMENT. 
  1. Fees. You will pay the fees for Services set forth in the applicable Order (the “Fees”). Unless we agree otherwise in an Order or other written agreement, all Fees are due and payable in advance in U.S. dollars, within 30 days after your receipt of the applicable invoice. All Fees are non-refundable, even if you do not use the Services. If you do not pay the Fees on time, Enflux may (at its option and in addition to other remedies): (i) charge a late fee on the unpaid balance at the lesser of 1.5% per month or the maximum lawful rate permitted by applicable law (plus the costs of collection), (ii) if unpaid for more than 10 days, suspend your and your Users’ access to the Services, and (iii) if unpaid for more than 30 days, terminate the applicable Services and/or Order.
  2. Tax. The Fees do not include sales, excise, use, VAT, or similar taxes (“Sales Tax”).  You represent to Enflux that your address for Sales Tax purposes is the address appearing on the billing section of your Order or such other address as you may certify to Enflux in a written statement as your correct address for Sales Tax purposes. You shall pay Enflux’s invoices for applicable Sales Tax on the payment terms applicable to the Fees, or shall provide evidence of a Sales Tax exemption or direct payment in a form reasonably acceptable to Enflux.  You acknowledge that the laws applicable to Sales Tax for online services such as Enflux are evolving and are subject to different interpretations, and you agree that Enflux’s reasonable interpretation of the laws applicable to Sales Tax shall control.
  1. TERM AND TERMINATION.
  1. Term. These Terms of Service shall be in effect from the Effective Date until terminated as set forth below. An Order will have the initial subscription term set forth therein and will automatically renew for successive renewal terms of the same length as the initial term unless either you or Enflux gives a notice of non-renewal on or before the last day of the initial term or then-current renewal term, as applicable.
  2. Termination. Enflux may terminate all or any part of the Services or any Order for any or no reason upon 30 days advance written notice to you and you will be entitled to receive a pro rata refund of any prepaid Fees for unused services as your sole and exclusive remedy. Either party may terminate these Terms of Service on 30 days written notice if no Order is in effect. In addition, either party may terminate these Terms of Service if the other party (i) fails to cure a material breach of the Agreement (including a failure to pay Fees) within 30 days after written notice thereof (such notice must contain sufficient detail as to the nature of the breach and state the intent to terminate and email notice is sufficient in the case of non-payment); (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within 60 days thereafter). For clarity, termination of these Terms of Service will automatically terminate all Orders. The following Sections will survive expiration or termination of the Agreement: Section 10 (Fees and Payment), 11 (Term and Termination), 18 (Confidentiality), 15 Indemnification, 16 (Limitation of Liability), 17 (Intellectual Property), 18 (Miscellaneous), and any other terms that by their nature are intended to survive expiration or termination.
  3. Suspension. Enflux may suspend your access to the Services during any period that (i) you are in material breach of the Agreement (including for failure to pay Fees) or (ii) your access to the Services or Your Data creates a material security vulnerability. Enflux will give you at least 5 business days’ advance notice of the suspension unless the suspension is made under emergency circumstances. Enflux will reinstate your access to the Services when the grounds for suspension are cured, unless Enflux has already terminated the Agreement as described in this Section.
  4. Return of Your Data. You are responsible for exporting Your Data from the Services prior to the termination or expiration of the applicable Services. In the event of a termination or expiration of Services, Enflux will retain Your Data for at least 15 days after such termination or expiration. Enflux has no obligation to retain Your Data after the 15-day period and may delete or destroy Your Data thereafter. If you wish to export Your Data following a termination of the Services but before Enflux deletes or destroys Your Data, Enflux may, at its option, either (i) enable you to have short-term access to the Services at a scheduled time so that you may export Your Data, or (ii) export Your Data using its standard export tools on a time and materials basis at Enflux’s then-current rates for such services.
  1. COMPLIANCE WITH LAWS. You must use the Services in compliance with applicable law, including as further detailed in Section 20.10 (Export Compliance).
  2. REPRESENTATIONS AND WARRANTIES.  Each party represents that it has validly entered into the Agreement and has the legal power to do so. You represent and warrant to Enflux, as of the effective date of each Order and on an ongoing basis, that: (i) the information you submit about yourself and your activities to establish a Services account with Enflux and place an Order is true, correct, and complete, (ii) you have not been the target of any legal or regulatory investigations or proceedings in connection with your activities related to Your Data, (iii) Your Data was collected in accordance with applicable law, and that you have all necessary rights and authority to use and process Your Data as contemplated by the Agreement, including any required consents from individuals under applicable privacy laws, and (iv) each third party service provider with whom you integrate using an Integration Feature or API has given you any permissions or licenses that may be required for the integration.
  3. WARRANTY. 
  1. Services Warranty. If the Services materially fail to conform to the Order, Enflux will attempt to cure the failure or if it is unable to cure the failure through commercially reasonable efforts it will refund a pro rata portion of the Fees paid by you for the failed Service element for the month during which the failure occurred. However, to be eligible for a warranty remedy under this section, you must give a written notice describing the failure no later than 3 days following the end of the month in which the failure first occurred and cooperate with Enflux’s reasonable efforts to cure the failure.  Your right to terminate the Agreement for material breach (if applicable), and the refund remedy stated in this Section are your sole and exclusive remedies for Enflux’s warranty breach.
  2. Warranty Disclaimers. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THE SERVICES ARE PROVIDED AS-IS. ENFLUX DISCLAIMS ANY IMPLIED WARRANTIES, SUCH AS A WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY REPRESENTATION OR WARRANTY THAT MAY ARISE THROUGH A COURSE OF DEALING. You acknowledge that the use of the Services may not be uninterrupted, error free, or completely secure. If applicable law requires Enflux to make a warranty notwithstanding this disclaimer, then the warranty is made for a period of 30 days from the date that it is deemed to have been made, and your sole and exclusive remedy for a breach of the warranty is a refund of Fees paid for the Services covered by the warranty. You represent that you have not relied on any representation or warranty other than those stated in these Terms of Service.
  1. INDEMNIFICATION. You agree that if a third party asserts a legal claim against Enflux or any of its officers, members, managers, employees, staff, personnel, agents, licensors or suppliers (the “Enflux Persons“) arising from your violation of these Services Terms, any Order, or the Agreement, including your breach of a representation or warranty, you will pay all reasonable costs of defending the claim, including reasonable attorney fees, and any damages awarded to the third party or paid to the third party by Enflux as a reasonable settlement. You agree that Enflux may control the defense of the claim at its option, or may require you to defend the claim directly. If Enflux elects to control the defense of the claim, you will reimburse Enflux for its reasonable defense costs and expenses as incurred.
  2. LIMITATION OF LIABILITY. You agree that the maximum total amount of money you can recover from any of the Enflux Persons or any Enflux licensor or supplier, individually and in the aggregate, for any claim you may have against any of them in connection with the subject matter of the Agreement is limited to the amount of Fees paid or payable for Services for the 6 months immediately prior to the date the claim arose unless the claim is based on an Enflux Person’s intentional misconduct or is for personal injury or death resulting from the negligence, recklessness or intentional misconduct of a Enflux Person. In addition, you agree that in no event are you entitled to recover any lost revenue, lost profits, damages for lost data, or any indirect or consequential loss or damages or any kind. You acknowledge that Enflux has set its fees and entered into the Order in reliance on the limitations of remedies and liability stated in these Terms of Service, and that these limitations reflect an agreed allocation of risk between you and Enflux.
  3. INTELLECTUAL PROPERTY 
  1. Rights in Technology / Intellectual Property. You may not copy any part of the Services or Enflux Technology, or mirror the Services on any site or system, except that you may download and print copies of documentation for the Services (“Documentation”) as reasonably necessary for your permitted use of the Services, provided that you use the Documentation in the exact form published, retain all branding and proprietary notices, and do not transfer the Documentation to any other person. You may not remove any proprietary notices displayed on the Documentation, Enflux Technology, or other Services materials. Except for rights expressly granted in these Terms of Service, Enflux retains all right, title and interest in and to its Services, Enflux Technology, and all related Intellectual Property Rights. No rights in intellectual property may arise by implication or estoppel.
  2. Feedback. In the event that you provide any suggestions, ideas, improvements, or other feedback to Enflux regarding the Services, Enflux Technology, or Enflux’s other existing or proposed products or services (“Feedback”), Enflux shall own such Feedback.
  1. CONFIDENTIALITY.  Each party (the “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information, and other nonpublic information that it obtains from the other party (“Disclosing Party”) constitutes the confidential information of the Disclosing Party (“Confidential Information”), provided that such information should be reasonably known by the Receiving Party to be confidential due to the nature of the information or circumstances of its disclosure.  Any Enflux Technology, performance information relating to the Enflux Technology, the terms and conditions of the Agreement, and any Enflux pricing information shall be deemed Confidential Information of Enflux.  Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any of the Disclosing Party’s Confidential Information, except for the purpose of providing or using the Services or to the extent necessary to exercise legal rights in connection with the Agreement.  The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). You and Enflux each agree to use reasonable care to protect the confidentiality of the other party’s Confidential Information and to return or destroy the other party’s Confidential Information upon request, except as necessary for reasonable and customary business record-keeping purposes. The Receiving Party acknowledges that disclosure of Confidential Information may cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure the Disclosing Party shall be entitled to seek appropriate equitable relief (without the posting of a bond or similar instrument) in addition to whatever other remedies it might have at law.  
  2. PUBLICITY. Enflux may not identify you in its marketing and sales materials and may include your Marks in an appropriate area of its website and marketing materials, provided that it does not state or imply that you endorse the Enflux Services without your prior written consent. Any use of your Marks will be in accordance with any of your trademark usage guidelines communicated to us. Any goodwill accruing from Enflux’s use of your Marks shall accrue to you.
  3. MISCELLANEOUS. 
  1. Relationship of the Parties. The parties are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties.  Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent. There is no obligation of exclusivity — each party is free to contract with third parties, including competitors of the other party.
  2. Force Majeure. Except for your payment obligations, neither party is in violation of the Agreement if the failure to perform is due to an event beyond that party’s reasonable control, such as a significant failure of the power grid or Internet, denial of service attacks, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other acts or events for which precautions are not generally taken in the industry.
  3. Changes to the Terms of Service; Amendments. Enflux may, in the future, need to change the Enflux Terms of Service available at [https://enflux.com/legal] (the “URL Terms of Service”). Any such change(s) will take effect as to your Order(s) upon the earlier of the following: (i) when Enflux notifies you in writing of the change (including through an email notice or a message delivered through the Service) and you accept the change (including via email or an electronic click-to-accept method) or (ii) upon the renewal of the applicable Order or the addition of services pursuant to an Order addendum that occurs at least 30 days after the change to the URL Terms of Service was posted. If any such change materially and adversely impacts your use of the Services, you may terminate the Agreement by giving written notice to Enflux no later than 30 days following the effective date of the change and will be entitled to receive a pro rata refund of any prepaid Fees for unused services as your sole and exclusive remedy. Other than as set forth in this Section, no modification, amendment, or waiver of any provision the Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any preprinted term or condition stated in any purchase order or other business form is void.
  4. Assignment. Neither party may assign the Agreement or any of its rights or obligations thereunder, whether by operation of law or otherwise, without the other party’s prior written consent; provided, however, that either party may assign the Agreement in its entirety (including all Orders), without the other party’s consent to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, the Agreement will bind and enure to the benefit of the parties, their respective successors and permitted assigns.
  5. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between you and Enflux regarding your use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. In the event of any conflict or inconsistency among the documents, the documents will govern in the following order of precedence: (i) any “Special Terms” described in an applicable Order, (ii) these Terms of Service, and (iii) the terms of an applicable Order, other than any “Special Terms” described therein.
  6. Governing Law. The Order and these Services Terms are governed by and should be interpreted under the laws of the State of Texas, and the United States of America, as applicable, without giving effect to any conflicts of law principles that would require the application of the law of a different jurisdiction. The parties expressly and irrevocably disclaim and waive the application of the United Nations Convention on Contracts for the International Sale of Good and the Uniform Computer Information Act.
  7. Informal Dispute Resolution. Each party agrees that it will not file a lawsuit or other legal action in connection with the Services, any Order, these Services Terms, or the Agreement unless it has first given the other party written notice of the dispute, and attempted to resolve the dispute through good faith negotiation, provided that this Section does prohibit, condition or delay a party’s right to seek injunctive relief in any court of competent jurisdiction to address the other party’s infringement or misappropriation of its intellectual property, or the other party’s breach of its confidentiality obligations under this Agreement.
  8. Jurisdiction and Venue.  Each party agrees that it shall bring any lawsuit or other legal action related to this Agreement in the State or Federal courts sitting in Bexar County, Texas. Neither party shall dispute the personal jurisdiction of such courts, and each party waives any objection it may have as to the venue of such court.  To the extent permitted by applicable law, each party waives the right to a trial by jury in respect of any litigation arising out of the Agreement and the parties’ activities related thereto.  A party may not bring an action in relation to this Agreement more than 2 years after the date that the cause of action accrued.  The prevailing party in any action to enforce this Agreement, including an action for equitable relief, may recover its costs and expenses of the action from the other party, including reasonable attorney fees.
  9. Notices. Your notices must be submitted via ticket on the customer portal, and copied by electronic mail to support@enflux.com. Enflux’s notices to you must be given to your primary account contact at the email address in the Enflux portal. If you send a notice of breach of the Agreement, a legal dispute, a legal claim, or other legal matter, you must copy your notice to [sales@enflux.com], and must also send your notice via first class United States mail to Enflux’s physical address appearing on its Site on the day the notice is transmitted electronically. Enflux’s legal notices to you must be copied via first class United States mail to your physical notice address, or if your physical address is outside of the United States, via a reputable and established international priority mail service on the date the notice is transmitted electronically. Notices are deemed given, received and effective as of the time transmitted by electronic mail, or if that time does not fall on a business day, as of the beginning of the next business day. Notices must be given in the English language. A party may change its address for notice by giving notice in the manner stated in this Section.
  10. Export Compliance. You will not export or re-export the Service or elements of it, except as authorized by United States law and the laws of the jurisdiction in which the Service was accessed or obtained, and will not permit Users to access or use the Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation, or in a manner that causes Enflux to be in violation of U.S. export laws, even if the use is permitted by the laws applicable to you or your Users. For example, you may not permit the use of the Services by any person who you know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, or sounding rockets, or unmanned air vehicle systems. Each party represents that it is not on any restricted persons list maintained by the U.S., Canada, or any member of the European Union.
  11. Government Users. If you are any agency or office of the United States, Enflux provides the Service for use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in these Terms. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and the Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation.
  12. Anti-Corruption. Each party represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from the other’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If either party learns of any violation of the above restriction, it will promptly notify the other party.
  13. Construction. Section titles are for convenience only and have no legal or contractual effect. The word “personnel” refers to a person’s employees and individual contractors who are under the person’s direct supervision. The use of the word “including” should be read to mean “including, without limitation.” All software and other technology provided for your use is licensed and not sold. Any requirement in this Agreement that a statement be written, in writing, or a like requirement is satisfied by an email, message in the Services, or other digital forms of writing unless expressly stated otherwise.
  14. Third-Party Beneficiaries. There are no other third-party beneficiaries under this Agreement.
  15. Severability. In the event one or more of the terms of this Agreement are adjudicated invalid, illegal, or unenforceable, the adjudicating body may either interpret this Agreement as if such terms had not been included, or may reform such terms to the limited extent necessary to make them valid, legal or enforceable, consistent with the economic and legal incentives underlying the Agreement.
  16. Counterparts. These Terms of Service may be executed and delivered in counterparts (including by electronic transmission), each of which is original and together shall constitute the same instrument.