11. General Terms
11.1 Governing Law
This Agreement will be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws principles that would require the application of the law of a different state. Any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the Northern District of California or in state court in Santa Clara County, California and each party irrevocably submits to the jurisdiction and venue of any such court, except that Enphase Energy may seek relief in any court of competent jurisdiction to protect or enforce its intellectual property and proprietary rights.
11.2 Remedies
Injunctive Relief. All rights and remedies of Enphase Energy, 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. You acknowledge that any actual or threatened breach of Section 2, 3 or 4 will constitute immediate, irreparable harm to us for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.
11.3 Attorneys Fees
In the event of litigation between the parties arising out of or related to this Agreement, the prevailing party will be entitled to recover its attorneys’ fees and costs incurred.
11.4 Relationship Between the Parties
The parties are independent contractors and nothing in this Agreement will be construed as creating a partnership or joint venture of any kind and neither party will have the authority or power to bind the other party or to contract in the name of or create a liability against the other party in any way or for any purpose.
11.5 Assignment
You may not assign this Agreement, in whole or in part, without our prior written consent. Any assignment in violation of this Section will be null and void. We may freely assign this Agreement.
11.6 Force Majeure
Except for any payment obligations, neither party will be liable to the other for failure to fulfill obligations hereunder if such failure is due to causes beyond its reasonable control, including acts of nature, earthquake, fire, flood, embargo, catastrophe, sabotage, utility or transmission failures, governmental prohibitions or regulations, national emergencies, insurrections, riots or wars, or viruses which did not result from the acts or omissions of such party, its employees or agents, strikes, work stoppages or other labor difficulties, or outages of any network.
11.7 Export Laws
You will comply with applicable export laws and regulations of the United States with respect to the API and any technical data received under this Agreement.
11.8 Changes
This Agreement is subject to occasional revision, and if Enphase Energy makes any substantial changes to this Agreement, we will notify you by prominently posting notice of the changes on our Website or sending you an e-mail to the address that you provided for your Enlighten Service account. Any changes to this Agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you or thirty (30) calendar days following our posting of notice of the changes on our Website. These changes will be effective immediately for new licensees of the API. If you do not agree to the changes, you must cease your use of the API. By using the API, you agree to be bound by any such changes and, therefore, you should periodically visit our Website to examine the then-current Agreement. Please note that at all times you are responsible for updating any e-mail address that you have provided to us for your Enlighten Service account. If the e-mail address you have provided to us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice.
11.9 Miscellaneous
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. This Agreement cancels and supersedes any and all prior proposals (oral and written), understandings, representations, conditions, warranties, covenants and other communications between the parties, which relate to the subject matter of this Agreement. Except as otherwise provided in Section 11.8, this Agreement may only be amended by a written instrument signed by both parties. If this Agreement is translated into any other language, the English language version hereof will govern. The titles, headings and subheadings used throughout this Agreement are intended solely for convenience of reference and do not form a part of the terms of this Agreement. If any provision of this Agreement is found by a court of competent jurisdiction to be illegal, void or unenforceable, such provision will be construed so as to render it enforceable and effective to the maximum extent possible in order to effect the intention of this Agreement; and if such provision will be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof will not in any way be affected or impaired thereby. A party’s waiver of any breach of this Agreement by the other party will not constitute a waiver of any rights or any subsequent breach of the same or different provision thereof. To be enforceable, a waiver must be in writing signed by a duly authorized representative of the waiving party. Except as expressly set forth in this Agreement, nothing in this Agreement is intended or will be construed to confer upon or give to any third party any rights or remedies under or by reason of this Agreement. As used in this Agreement, the word "including" means "including but not limited to."
Questions or Concerns
If you have any questions or concerns regarding this Agreement, please contact us at api@enphase.com. Copyright (c) 2015 Enphase Energy, Inc. All rights reserved.
