This Enphase Energy End User License Agreement (this “Agreement”) is a legal agreement between you and Enphase Energy, Inc. (“Enphase,” “we,” “us” or “our”) regarding the use of the Enphase Installer Toolkit software application (the “App”) you have chosen to download from the Apple store website (the “Apple Site”) in connection with using the specially configured Enphase Envoy that Enphase delivered to you, along with an iPod Touch (the “Apple Device”) (collectively, the “Kit”).
Both we and you acknowledge that this Agreement is between us and you, and that Apple, Inc. and its subsidiaries (“Apple”) is not a party to this Agreement. We are solely responsible for the content of the App.
THIS KIT WILL ALLOW YOU TO REGISTER THE ENPHASE MICROINVERTERS IN ENLIGHTEN WITHOUT A PERMANENTLY-INSTALLED ENVOY AND WHEN NECESSARY, ASSOCIATE THE APPROPRIATE GRID PROFILE. NOT HAVING A PERMANENTLY INSTALLED ENVOY ON SITE MEANS THAT THE SYSTEM IS SUBJECT TO THESE LIMITATIONS:
- Enphase Energy Customer Support cannot remotely monitor the system, which will lead to more time being spent diagnosing and/or resolving potential issues;
- Detailed system performance information cannot be retrieved directly from the Envoy, which will lead to more time being spent diagnosing and/or resolving potential issues; and
- The Enphase Microinverters cannot receive any firmware or software upgrades remotely, which may impact future performance.
BY USING THIS KIT, YOU ACKNOWLEDGE ALL OF THE ABOVE LIMITATIONS. YOU ALSO AGREE TO INFORM THE OWNER OF THE ENPHASE MICROINVERTERS OF THESE LIMITATIONS.
The procedures for modifying or changing this Agreement in the future are discussed in Section 7.
1. Your Use of the Kit.
The Kit permits you to configure multiple unmonitored Enphase systems without additional assistance from Enphase Customer Support. To access the App you must have a valid Enlighten user ID and password. Once you have met these conditions you may use the Kit to configure an unmonitored Enphase System.
2. License Grant.
We grant you a limited, terminable, non-sublicensable, non-transferable, non-exclusive license to install and use the App on the Apple Device that Enphase delivered to you solely: (a) for your professional use in connection with viewing an analysis of your customer’s Enphase system’s performance on the Apple Device; and (b) as permitted by the Apple Terms of Service. This Agreement will also govern any software upgrades provided by Enphase that replace and/or supplement the original App, unless such upgrades are accompanied by a separate license, in which case the terms of that license will govern. Apple has no obligation to provide you with any updates, maintenance or support services for the App.
3. License Restrictions and Usage Rules.
3.1 License Restrictions.
You may not use the App on any other Apple Device, and you may not distribute or make the App available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the App. You may not copy (except as expressly permitted by this Agreement and the usage rules described in Section 3.2), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify or create derivative works of the App, any updates or any part thereof (except to the extent any foregoing restriction is permitted by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the App.
3.2 Usage Rules.
You acknowledge that the App contains security technology that limits your usage of the App to the following applicable usage rules, and, whether or not the App is limited by security technology, you agree to use the App in compliance with the applicable usage rules:
a. your use of the App is conditioned upon your prior acceptance of the terms of this Agreement;
b. you will not attempt to, or encourage or assist any other person to circumvent or modify any security technology or software that is part of the Service (as defined in the Apple Terms of Service) or used to administer the Usage Rules (as defined in the Apple Terms of Service); and
c. the delivery of the App does not transfer to you any promotional use rights in the App.
4. Termination and Survival.
If you breach this Agreement, we may immediately terminate this Agreement, but all provisions of this Agreement except Section 1 (“License Grants”) will survive termination and continue in effect. Upon termination, you must destroy all copies of the App.
5. License to Enphase.
By using the App to transmit digital content relating to your customer’s Enphase system to and from our servers to the Apple Device, you agree to grant, and thereby grant, to us an exclusive, perpetual, transferable, sublicensable, royalty-free, non-revocable, worldwide license to copy, modify, and otherwise use such content to make the Enphase Site and Enphase Service available to you and for our general business purposes. You hereby acknowledge and affirm that the use of the Enphase Service and the Enphase Site is sufficient consideration for the grant of this license to us.
6. Proprietary Rights.
We reserve all intellectual property rights in the App, except for the rights expressly granted in this Agreement. You may not remove or alter any trademark, logo, copyright or other proprietary notice in or on the App. This license does not grant you any right to use the trademarks, service marks or logos of Enphase or its licensors.
7. Modification of this Agreement.
We will at our expense and option defend or settle any claim brought against you alleging that the App or your possession and use of the App breaches any third-party intellectual property rights. We, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of this third-party intellectual property infringement claim.
We will have no obligation with respect to any claim under Section 8.1 unless: (a) you promptly notify us about the claim; (b) you allow us to have sole control of the defense and settlement of such claim; and (c) you provide us with reasonable assistance in connection with our defense and settlement of such claim.
8.3 Our Options.
If the App infringes or misappropriates, or in our reasonable determination is likely to infringe or misappropriate any third party’s intellectual property rights, then we may, at our sole option and expense: (a) obtain from the third party the right to continue to use the App consistent with the rights granted hereunder; or (b) modify the App to avoid and eliminate such infringement or misappropriation.
We will not be liable for any infringement based on: (a) modification of the App by anyone other than us; or (b) the combination of the App with other software, items or processes not furnished by us if such infringement would have been avoided by the use of the Software alone.
8.5 Exclusive Remedy.
THE FOREGOING PROVISIONS OF THIS SECTION 8 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF ENPHASE, AND THE EXCLUSIVE REMEDY OF ENPHASE, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT.
9. Disclaimer of Warranty.
THE APP IS PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. TO THE EXTENT PERMITTED BY LAW, ENPHASE AND ENPHASE’S DISTRIBUTORS AND LICENSORS HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, WARRANTIES THAT THE APP IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE, ACCURATE AND NON-INFRINGING. YOU BEAR THE ENTIRE RISK AS TO SELECTING THE APP FOR YOUR PURPOSES. ENPHASE AND ENPHASE’S DISTRIBUTORS AND LICENSORS DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APP, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE APP WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APP OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE APP, ENPHASE SERVICES OR ENPHASE SITE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ENPHASE SHALL CREATE A WARRANTY. IF THE APP, ENPHASE SITE OR ENPHASE SERVICES ARE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. THIS LIMITATION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES. IF YOU RESIDE IN ONE OF THESE JURISDICTIONS, THIS DISCLAIMER MAY NOT APPLY TO YOU.
10. Limitation of Liability.
EXCEPT AS REQUIRED BY LAW, ENPHASE AND ITS DISTRIBUTORS, DIRECTORS, LICENSORS, CONTRIBUTORS AND AGENTS (COLLECTIVELY, THE “ENPHASE GROUP”) WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE APP, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, AND COMPUTER FAILURE OR MALFUNCTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH SUCH CLAIM IS BASED. EXCEPT AS SET FORTH IN SECTION 8, ENPHASE’S COLLECTIVE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED $50.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES. IF YOU RESIDE IN ONE OF THESE JURISDICTIONS, THIS EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU.
11. Export Controls.
You may not use or otherwise export or re-export the App except as authorized by United States law and the laws of the jurisdiction in which the App was obtained. In particular, but without limitation, you may not export or re-export the App: (a) into any United States embargoed countries; or (b) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the United States Department of Commerce Denied Person’s List or Entity List. By using the App, you represent and warrant that: (i) you will not use these products for any purpose prohibited by United States law, including without limitation, the development, design, manufacture or production of nuclear missiles or chemical or biological weapons; (ii) you are not located in a country that is subject to a United States government embargo or has been designated by the United States government as a “terrorist supporting” country; and (iii) you are not listed on any United States government list of prohibited or restricted parties.
12. U.S. Government End-Users.
The App and any related documentation are “Commercial Items,” as that term is defined at 48 C.F.R. 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227-7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users: (a) only as Commercial Items; and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions in this Agreement. Unpublished rights are reserved under the copyright laws of the United States.
13. Injunctive Relief.
We will have the right to seek injunctive relief to enforce this Agreement or to stop or prevent an infringement of proprietary or other third-party rights.
14. Choice of Law, Jurisdiction and Venue.
You and we agree that any disputes between us shall be resolved under the substantive law of the state of California (exclusive of its choice of law provisions). The Convention for the International Sale of Goods shall not apply. You and we agree to submit all disputes between us to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California.
15. Entire Agreement.
This Agreement constitutes the entire agreement between you and us regarding the use of this Site and supersedes any prior or contemporaneous understandings and agreements between you and us related to its subject matter.
16. Third Party Beneficiaries.
Apple is a third-party beneficiary to this Agreement. Upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary of this Agreement.
17. Section Titles.
The section titles in this Agreement are for convenience only and have no legal or contractual effect.
Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision.
The parties agree that each provision of this Agreement is intended to be construed to be enforceable to the fullest extent possible. If any provision or part of a provision of this Agreement is held to be unlawful, void, or unenforceable, that provision or part of the provision shall be deemed severable from this Agreement and not affect the validity and enforceability of any remaining provisions.
You may not assign your rights under this Agreement to any third party; we may assign your rights under this Agreement without condition.
21. Product Questions, Comments, Claims and Contact Information.
We, and not Apple, are responsible for addressing any questions, comments or claims relating to the App and/or your use of the App, including but not limited to: (a) product liability claims; (b) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. If you have any comments or questions, please contact Enphase at:
Enphase Customer Care
1420 N. McDowell Blvd, Petaluma CA 94954