Enphase Upgrade Program Terms & Conditions
These sales terms and conditions constitute the entire agreement (“Terms”) between Enphase Energy, Inc. (“Enphase”) and the buyer (“Buyer”) with respect to limited sales of Enphase microinverters and other products (collectively, “Products”) to be installed subject to Buyer’s satisfaction and compliance with the conditions and obligations set forth below.
- Proprietary Rights: Enphase retains ownership of all intellectual property rights in the Products (including the Embedded Software). The Products are offered for sale and sold on the condition in every case that, except as expressly set forth in Section 3, such sale does not convey any license, express or implied, under any intellectual property right of Enphase, and all such rights are reserved. There are no implied licenses in these Terms.
- Embedded Software: Embedded Software is provided under license and is not sold. Enphase grants to Buyer, if Buyer is an installer, a non-exclusive and non-transferable license, to sublicense on a non-exclusive and non-transferable basis the right to execute and use the Embedded Software solely on the applicable Product in accordance with the applicable Enphase documentation to install and configure the Product for use with the applicable End User’s photovoltaic system; or if Buyer is an End User, the right to execute and use the Embedded Software solely on the applicable Product in accordance with the applicable Enphase documentation, for the End User’s own internal purposes. Buyer shall not, and shall ensure that no third party shall, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Embedded Software. “Embedded Software” means firmware and software embedded in the Products, and any modified, updated, or enhanced versions of such firmware or software provided by Enphase.
- Limited Warranty: Upon delivery to Buyer, the Products shall be subject to the applicable Limited Warranty set forth on the Enphase website at http://www4.enphase.com/warranty/ (the “Limited Warranty”). Delivery of the Products voids and supersedes all warranties associated with previously installed Enphase microinverters, which shall be replaced under the Legacy Product Upgrade Program. Except for the Limited Warranty, the Products are provided on an “as is” basis, and Enphase does not make any additional warranties or representations regarding the Products. If Buyer is an installer, and a Product purchased is resold to a Consumer within the meaning of the Magnuson-Moss Warranty Act, such Consumer shall be entitled to the rights provided under the said Limited Warranty. Such installer Buyer shall, in every instance of such resale of a Product to a Consumer, provide a copy of the applicable Warranty Certificate together with any additional terms under this Agreement that amend the terms of the Warranty Certificate, and all Product installation, operation and maintenance instructions to the Consumer at the point of sale. Except for the Limited Warranty, Enphase does not make any warranty or representation regarding the Products or these Terms. Buyer, if Buyer is an installer, shall pass-through the Limited Warranty to End Users. Buyer acknowledges and agrees that except for Installer’s authorized resale to Consumers and End Users as detailed in this Section, the Limited Warranty is non-transferable and does not pass to any other subsequent Consumer or End User. Buyer acknowledges and agrees that Enphase makes no guarantee that Product sold for installation in regions where Enphase has not obtained the Required Authorizations (as defined below) will function as designed by Enphase.
- Product Returns. Returns will only be accepted under the return merchandise authorization (“RMA”) process. Before returning any Product to Enphase, Buyer must request an RMA. Upon issuance of the RMA, Enphase will ship the replacement Product to the address specified. If the instruction is to scrap, the Buyer shall replace and may scrap the failed Product. If instructed to return the failed Product; the Buyer shall place the defective Product into the same shipping box, print a shipping tag and display such RMA number prominently on the packaging for any such returned Product, then either call the shipping vendor or drop off the box at the nearest shipping location. Enphase pays the return shipment on such authorized returns. Buyer must prepay any and all shipping charges for Product returned to Enphase. Enphase will not accept collect shipments. Any Products returned to Enphase other than in accordance with the terms of these Terms may be refused by Enphase, at its sole discretion.
- Limitation of Liability: To the maximum extent permitted by law, in no event will Enphase or its suppliers be liable for any consequential, indirect, exemplary, special or incidental damages, or for any lost profits or lost data, arising from or relating to these terms or the Products, even if Enphase has been advised of the possibility of such damages, nor shall Enphase be liable for any death or personal injury resulting from Buyer’s negligence or failure to follow installation instructions. Enphase’s total cumulative liability arising from or relating to these terms or the products, whether in contract or tort or otherwise, will not exceed the amounts paid to Enphase for the specific Product giving rise to the claim. Enphase disclaims all liability of any kind of Enphase’s suppliers. The above limitations of liability are independent of any exclusive remedies set forth in these terms.
- Indemnity: Buyer will defend, indemnify, and hold Enphase and its affiliates, and their respective directors, employees, and agents, harmless from and against any claims, suits, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) brought by third parties (including any distributor, installer or other customer of Buyer) resulting from or relating to: (a) any acts or omissions of Buyer, or its distributors, installers or agents, in marketing, selling, distributing, or installing the Products; (b) any unauthorized representations, warranties, or guarantees made by Buyer or its distributors and installers, or any of Buyer’s or its distributors’, installers’ or customers’ employees or agents, relating to the Products, (c) any breach by Buyer of Buyer’s obligations, duties and responsibilities under this Agreement, or (d) any claims against Enphase unrelated to the Products. Under no circumstances shall Buyer enter into any settlement that involves an admission of liability, negligence or other culpability of Enphase or requires Enphase to contribute to the settlement without Enphase’s prior written consent. Enphase may participate and retain its own counsel at its own expense.
- Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S.A., without regard to any conflicts of laws principles that would require another jurisdiction to apply. Any dispute, controversy, or claim arising out of, in connection with, or relating to the performance of this Agreement or its termination shall be. subject to the exclusive jurisdiction of, and venue in, the state court of Sonoma County, California, U.S.A., or the federal court of the Northern District of California, U.S.A., except nothing shall restrict Enphase from seeking relief to protect its intellectual property rights in any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
- Legal Compliance: Buyer will at all times and at its own expense comply with all laws and, including (a) obtaining and complying with all reports, licenses, permits, certifications and authorizations (technical or otherwise) required to perform or for the sale, installation, use and operation of Products (“Required Authorizations”), and (b) not engaging in any unfair trade practice. Buyer, upon Enphase’s request and at its own expense, will promptly provide evidence satisfactory to Enphase of its compliance with the above requirements.
- General: Buyer shall not assign or transfer these Terms or any rights or obligations, by operation of law or otherwise, without the prior written consent of Enphase. Any assignment in violation shall be void. This Agreement constitutes the entire agreement between Enphase and Buyer, and supersedes all previous communications, course of dealing representations and agreements, whether oral or written, between Buyer and Enphase with respect to the subject matter. This Agreement may not be modified, supplemented, qualified, or interpreted except in writing signed by an officer of Buyer and Enphase. The failure by Enphase to enforce at any time any of the provisions in these Terms will in no way be construed as a waiver of such provisions. If any provision of these Terms is unenforceable as written, the remainder of these Terms will remain in effect and the unenforceable provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in connection with the construction or interpretation of these Terms.