This SunPower End User License Agreement (this “Agreement”) is a legal agreement between you and SunPower Corporation (“SunPower,” “we,” “us” or “our”) regarding the SunPower iPhone software application (the “iPhone App”) you have chosen to download from the Apple iPhone store website (the “Apple Site”) located at http://www.apple.com/iphone/appstore/.
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 iPhone App.
This Agreement incorporates by reference our Terms of Use Agreement (the “Terms of Use Agreement”) available at http://us.sunpowercorp.com/terms.php, our Privacy Policy (the “Privacy Policy”) available at http://us.sunpowercorp.com/privacy.php?re=1 and the Apple App Store Terms of Service http://www.apple.com/legal/itunes/us/terms.html#SERVICE (the “Apple Terms of Service”). Upon valid acceptance of this Agreement, you agree and understand that you are bound by the Terms of Use, the Privacy Policy and the Apple Terms of Service.
The procedures for modifying or
changing this Agreement in the future are discussed in Section 7.
1. Your Use of the iPhone App.
This iPhone App permits you to
access the SunPower solar panel monitoring services (“SunPower
Services”) available on SunPower’s site (“SunPower Site”)
located at http://www.sunpowercorp.com/ from your iPhone or iPod touch (collectively,
“Apple Device”) to view an up-to-date analysis of the performance
of your SunPower system. You must register with the SunPower Site
and have a valid user ID and password in order to download and use the
iPhone App and the SunPower Services. Once you have met these
conditions and downloaded the iPhone App onto your Apple Device, you
may use the web browser on your Apple Device to access your personal
account on the SunPower Site and view your SunPower system performance.
2. License Grant.
We grant you a limited, terminable,
non-sublicensable, non-transferable, non-exclusive license to install
and use iPhone App on any Apple Device that you own or control solely:
(a) for your personal use in connection with viewing an analysis of
your SunPower system’s performance on your Apple Device; and (b) as
permitted by the Apple Terms of Service. This Agreement will also
govern any software upgrades provided by SunPower that replace and/or
supplement the original iPhone 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 iPhone App.
3. License Restrictions and Usage Rules.
3.1 License Restrictions.
License Restrictions. You may not use the iPhone App on any Apple Device that you do not own or control, and you may not distribute or make the iPhone 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 iPhone 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 iPhone 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 iPhone App.
3.2 Usage Rules.
Usage Rules. You acknowledge that the iPhone App contains security technology that limits your usage of the iPhone App to the following applicable usage rules, and, whether or not the iPhone App is limited by security technology, you agree to use the iPhone App in compliance with the applicable usage rules:
- your use of the iPhone
App is conditioned upon your prior acceptance of the terms of this Agreement;
- you will be able to
store the iPhone App from up to five different Accounts (as defined
in the Apple Terms of Service) on certain devices, including the Apple
Devices at a time;
- you will be able to store
the iPhone App on five iTunes-authorized devices at any time;
- 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);
- the delivery of the
iPhone App does not transfer to you any promotional use rights in the
iPhone App; and
- you shall be able
to manually sync the iPhone App from at least one iTunes-authorized
device to devices that have manual sync mode, provided that the iPhone
App is associated with an Account (as defined in the Apple Terms of
Service) on the primary iTunes authorized device, where the primary
iTunes-authorized device is the one that was first synced with the device,
or the one that you subsequently designate as primary using iTunes.
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 iPhone App.
5. License to SunPower.
By using the iPhone App to transmit
digital content relating to your SunPower system to and from our servers
to your iPhone, 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 SunPower Site and SunPower Service available to you and for
our general business purposes. You hereby acknowledge and affirm
that the use of the SunPower Service and the SunPower Site is sufficient
consideration for the grant of this license to us.
6.
Proprietary Rights.
We reserve all intellectual property
rights in the iPhone 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 iPhone App.
This license does not grant you any right to use the trademarks, service
marks or logos of SunPower or its licensors.
7. Modification
of this Agreement.
Because of changes in technology
and the growth and development of our business, or for other business
reasons, we may need to modify this Agreement from time to time.
If we modify the Agreement, we will post a notice on the SunPower Site,
and we will alert you by email if you have given us your email address.
It is therefore important that you register with the SunPower Site and
notify us if you change your email address. If you do not provide
us with a current email address, you should regularly review the SunPower
Privacy Policy to ensure that you are informed of any changes.
8. Indemnification.
8.1 Indemnity.
We will at our expense and option defend or settle any claim brought against you alleging that the iPhone App or your possession and use of the iPhone 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.
8.2 Limitation.
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 iPhone 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 iPhone App consistent with the rights granted hereunder; or (b) modify the iPhone App to avoid and eliminate such infringement or misappropriation.
8.4 Exclusions.
We will not be liable for any infringement based on: (a) modification of the iPhone App by anyone other than us; or (b) the combination of the iPhone 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 SUNPOWER, AND THE EXCLUSIVE REMEDY OF SUNPOWER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT.
9. Disclaimer of Warranty.
THE IPHONE APP IS PROVIDED "AS IS" AND "AS
AVAILABLE" WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. TO THE EXTENT
PERMITTED BY LAW, SUNPOWER AND SUNPOWER'S DISTRIBUTORS AND LICENSORS HEREBY
DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING
WITHOUT LIMITATION, WARRANTIES THAT THE IPHONE APP IS FREE OF DEFECTS,
MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE, ACCURATE AND NON-INFRINGING.
YOU BEAR THE ENTIRE RISK AS TO SELECTING THE IPHONE APP FOR YOUR PURPOSES.
SUNPOWER AND SUNPOWER'S DISTRIBUTORS AND LICENSORS DO NOT WARRANT AGAINST
INTERFERENCE WITH YOUR ENJOYMENT OF THE IPHONE APP, THAT THE FUNCTIONS CONTAINED
IN, OR SERVICES PERFORMED OR PROVIDED BY, THE IPHONE APP WILL MEET YOUR
REQUIREMENTS, THAT THE OPERATION OF THE IPHONE APP OR SERVICES WILL BE
UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE IPHONE APP, SUNPOWER
SERVICES OR SUNPOWER SITE WILL BE CORRECTED. NO ORAL OR WRITTEN
INFORMATION OR ADVICE GIVEN BY SUNPOWER SHALL CREATE A WARRANTY. IF THE
IPHONE APP, SUNPOWER SITE OR SUNPOWER 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, SUNPOWER AND ITS
DISTRIBUTORS, DIRECTORS, LICENSORS, CONTRIBUTORS AND AGENTS (COLLECTIVELY, THE "SUNPOWER
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 IPHONE 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, SUNPOWER'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 iPhone App except as authorized by United States law and the laws
of the jurisdiction in which the iPhone App was obtained. In particular,
but without limitation, you may not export or re-export the iPhone 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 iPhone 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 iPhone 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 Santa Clara 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.
18. Non-Waiver.
Our failure to exercise or enforce any right
or provision of this Agreement shall not operate as a waiver of such right or
provision.
19. Severability.
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 iPhone App and/or
your use of the iPhone App, including but not limited to: (a) product
liability claims; (b) any claim that the iPhone 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 SunPower at:
SunPower Customer Care
3939 North First Street
San Jose, CA 95134
Telephone: 1-800-SUNPOWER (786-7693)
Email:
customercare@sunpowercorp.com
22. Requesting a Refund.
If you paid for the iPhone App, and if the iPhone App fails to conform to any applicable warranty (if any), please notify Apple, and Apple will refund to you the price you paid for the iPhone App. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iPhone App, and any other claims, losses, liabilities, damages, costs or expenses attributable to failure to conform with a warranty made under this Agreement (if any), will be SunPower's sole responsibility.
