Terms and Conditions of Sales
Elite Power Solutions, LLC (EPS)
1. Offer and Acceptance: EPS offers to sell and deliver Lithium Ion batteries, chargers and battery management systems and other related products in accordance with the terms and conditions set forth herein. Acceptance of this offer is expressly limited to such terms. EPS hereby objects to and rejects any additional or different terms proposed by Buyer, including those contained in Buyer's purchase order, unless EPS expressly agrees to such terms in writing.
2. Prices and Releases: The prices of the Products are those prices specified on the front of the invoice. Pricing for undelivered Products may be increased in the event of an increase in EPS’ cost, change in market conditions or any other causes beyond the EPS’ reasonable control. Price quotations shall automatically expire in thirty (30) days from the date issued, or as otherwise stated in the quotation. EPS shall have the right and Buyer shall have the obligation to renegotiate the price of all products not yet shipped, and if an agreement is not reached, EPS shall have the right to terminate this contract without liability.
3. Title and Delivery: Shipments inside the U.S. shall be delivered F.O.B. EPS' shipping dock. Shipments outside the U.S. shall be delivered FCA (Incoterms 2000) Buyer's designated carrier. Title and liability for loss or damage shall pass to Buyer upon EPS' delivery to Buyer's designated carrier. Any subsequent loss or damage shall not relieve Buyer from its obligations. Buyer shall reimburse EPS for insurance and transportation costs on international shipments and shall be responsible for all import duties, taxes and any other expenses incurred or licenses or clearances required. EPS may deliver products in installments. Delivery dates are estimates. EPS shall not be liable for any damage, losses or expenses incurred by Buyer if EPS fails to meet the estimated delivery dates.
4. Payment Terms: Payment in advance is our standard payment requirement. Payment may be made by check, money order, credit card, PayPal or wire transfer (all fees are borne by the Buyer). There is a surcharge of 3% for sales paid by credit cards and via Paypal. Where EPS has extended credit to Buyer, terms of payment shall be net thirty (30) days from date of invoice, without offset or deduction unless otherwise noted. On any past due invoice, EPS will impose interest at the rate of one and a half percent [1.5%] per month. EPS may change or withdraw credit amounts or payment terms at any time for any reason. If the products are delivered in installments, Buyer shall pay for each installment in accordance with the above payment terms. If Buyer fails to make any payment when due, EPS may suspend or cancel performance under any agreements in which EPS has extended credit to Buyer. EPS' suspension of performance may result in rescheduling delays. If, in EPS' judgment, Buyer's financial condition does not justify the payment terms specified herein, then EPS may terminate this contract unless Buyer immediately pays for all products that have been delivered and pays in advance for all products to be delivered. Termination in accordance with this clause shall not affect EPS' right to pursue any other available remedies. In the event of default by Buyer, EPS shall be entitled to costs, fees, and expenses, including but not limited to recovery of attorney fees, court costs and fees, and collections costs.
5. Taxes: Prices do not include applicable taxes or duties. Buyer is solely responsible for paying all applicable taxes and duties. EPS will add sales taxes to the sales price where required by applicable law, and Buyer will pay such taxes unless Buyer provides EPS with a duly executed sales tax exemption certificate. If Buyer is required by law to withhold any amount of tax from its payment to EPS, Buyer shall promptly pay such amount to the appropriate tax authority and take all reasonable steps to minimize such withholding tax.
6. Contingencies: EPS shall not be in breach of this contract and shall not be liable for any non-performance or delay in performance if such non-performance or delay is due to a force majeure event or other circumstances beyond EPS' reasonable control, including but not limited to, shortages of labor, energy, fuel, machinery or materials, technical or yield failures, war, civil unrest, any government act, law or regulation, including any judicial order or decree, any communication or power failure, labor dispute, natural disaster, fire, flood, earthquake, explosion, terrorist act or Act of God. In the event of a shortage of products, EPS may allocate, at its sole discretion, product production and deliveries.
7. Warranties and Related Remedies:
7.1 Subject to clauses 7.5 and 7.6 below, EPS warrants that EPS Lithium Ion batteries, chargers and battery management systems and other related products will conform either to EPS' published specifications for such product or other mutually agreed upon written specifications signed by an authorized EPS representative. This warranty lasts for one (1) year after the date EPS ships such products to Buyer, provided, however, Buyer must install those products within six (6) month after shipment. Extended warranty beyond one (1) year period shall be approved by an authorized EPS representative. EPS shall not be liable for any defects that occur that are installed more than six (6) months after shipment. Notwithstanding the foregoing, EPS shall not be liable for any defects that are caused by neglect, misuse or mistreatment by an entity other than EPS, including improper installation or testing, or for any products that have been altered or modified in any way by an entity other than EPS. Moreover, EPS shall not be liable for any defects or cost that result from Buyer's design, specifications or instructions for such products. Testing and other quality control techniques are used to the extent EPS deems necessary. Unless mandated by government requirements, EPS does not necessarily test all parameters of each product.
7.2 In general, Buyer has three (3) calendar days from the date of receiving delivery to file a claim for items missing in a shipment or any shipping damages. The reason is that anything hazardous shipped via small package has to be tendered back to a UPS driver within three (3) calendar days in order for the hazardous material to be legally returned to EPS, unless Buyer is under contract with a carrier to ship hazardous shipments. For BUYERS who have contracts with carriers to ship hazardous shipments, BUYERS will have 30 days to file claim from the date of delivery.
7.3 If any EPS products fail to conform to the warranty set forth above, EPS' sole liability shall be at its option to repair or replace such products, or credit Buyer's account for such products. EPS' liability under this warranty shall be limited to products that are returned during the warranty period to the address designated by EPS and that are determined by EPS not to conform to such warranty. If EPS elects to repair or replace such products, EPS shall have a reasonable time to repair such products or provide replacements. Repaired and replaced products shall be warranted for the remainder of the original warranty period.
EXCEPT AS SET FORTH ABOVE, LITHIUM ION BATTERIES, CHARGERS AND BATTERY MANAGEMENT SYSTEMS PRODUCTS ARE PROVIDED "AS IS" AND "WITH ALL FAULTS" EPS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7.4 Buyer agrees that prior to using or distributing any systems that include EPS products, Buyer will thoroughly test such systems and the functionality of such EPS products as used in such systems. EPS may provide technical, applications or design advice, quality characterization, reliability data or other services. Buyer agrees that providing these services shall not expand or otherwise alter EPS' warranties, as set forth above, and no additional obligations or liabilities shall arise from EPS providing such services.
7.5 Safety-Critical Applications.
EPS products are not authorized for use in safety-critical applications (such as life support) where a failure of the EPS product would reasonably be expected to cause severe personal injury or death, unless officers of the parties have executed an agreement specifically governing such use. Buyer shall fully indemnify EPS and its representatives against any damages arising out of the unauthorized use of EPS products in such safety-critical applications.
Buyer represents that it has all necessary expertise in the safety and regulatory ramifications of its applications, and Buyer acknowledges and agrees that it is solely responsible for compliance with all legal, regulatory and safety-related requirements concerning its products and any use of EPS products in Buyer's applications, notwithstanding any applications-related information or support that may be provided by EPS.
7.6 Notwithstanding anything to the contrary, SOFTWARE PRODUCTS AND EXPERIMENTAL AND DEVELOPMENT PRODUCTS ARE PROVIDED "AS IS" AND "WITH ALL FAULTS" EPS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH SOFTWARE PRODUCTS AND EXPERIMENTAL AND DEVELOPMENT PRODUCTS, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Product Safety Instructions
BUYER MUST READ AND UNDERSTAND THE SAFETY GUIDELINES AND INSTRUCTIONS IN ITS ENTIRETY BEFORE USING OR CHARGING EPS LI-ION BATTERY PACK. FAILURE TO DO SO MAY RESULT IN FIRE, PERSONAL INJURY, OR DAMAGE TO PROPERTY IF USED IMPROPERLY. EPS ASSUMES NO LIABILITY OR WARRANTY CLAIM FOR FAILURE TO COMPLY WITH THE GUIDELINES AND INSTRUCTIONS. BUYER ASSUMES ALL RISKS ASSOCIATED WITH EPS PRODUCT.
8.1 Li-ion battery cells must be used with a battery management system (BMS). Every Lithium Ion battery cell must be monitored and automatically protected by a BMS system against over-charge and over-discharge conditions. Over-charge and over-discharge conditions will cause permanent damage to battery cells and packs, and possibly create unsafe operating conditions, such as fire.
8.2 Buyer must always implement safety devices such as fuses and contactors together with BMS system to disrupt charging and discharging paths when unsafe conditions occur, such as over-voltage, under-voltage, over-current, short circuit, over-temperature, under-temperature, etc.
8.3 Buyer must always use a BMS system provided by EPS together with EPS Lithium Ion batteries. If a non-EPS provided BMS is desired, Buyer must send specifications of the BMS system to EPS for review and approval prior to installation.
8.4 Buyer must always use an EPS provided charger to charge EPS Li-ion batteries. If a non-EPS provided charger is desired, Buyer must submit specifications of the charger to EPS for review and approval prior to use.
8.5 Buyer must read specifications of EPS Li-ion battery before usage and charging. Buyer must always charge and discharge Li-ion battery within the specified parameter ranges based on individual cell voltages and temperatures.
8.6 Battery, BMS, charger and other control electronics must be installed or kept in a dry area. Buyer must avoid exposure to water, such as rain, splashes and moisture condensation.
8.7 Battery packs and control systems must be securely installed. Buyer must avoid any movement of battery, connections, wiring and electronics during use.
8.8 Buyer must avoid short circuiting battery cells or packs. A short circuit condition will cause permanent damage to battery cells and packs, and possibly create an unsafe operating condition, such as fire. Buyer must use caution when installing bus bars, cables and BMS components on the cell terminals. Tools, such as screw drivers and wrenches should be of a properly rated, electrically insulated type.
8.9 Buyer needs to make sure that the surfaces of battery terminals and bus bars are clean and dry. All screws must be tightened properly on the battery terminals before battery is used. Loose connections will result in high contact resistance, heat generation, and can potentially be a fire hazard.
8.10 Buyer must make sure bus bar stacks, terminal connectors and cables are adequately sized to handle the maximum charge and discharge current. Inadequately sized bus bar stacks, connectors and cables will cause over-heating and result in a potential fire hazard. Buyer must always use current limiting devices such as fuses or circuit breakers.
8.11 There is risk of electric shock when working on a Li-ion battery pack. Buyer and its personnel must always wear personal protective equipment (PPE) when working on a battery pack per Occupational Safety and Health Administration (OSHA) and National Electric Code (NEC) guidelines.
8.12 Batteries are strapped with Aluminum plates and steel bars. The strapping hardware provides compression to the pack and prevents possible swelling. Removing this strapping hardware may result in cells swelling during use, which will result in accelerated aging and shorter lifetime.
If Buyer has any questions regarding safety instructions, Buyer needs to contact EPS immediately using contact methods listed on EPS’ website.
9. Intellectual Property Indemnification:
9.1 Subject to clauses 9.2, 9.3, 10.1 and 10.2, EPS will pay any damages, liabilities or costs (excluding consequential and exemplary damages) finally awarded against Buyer, or agreed to by EPS as settlement or compromise, and will defend Buyer against any claim, suit or proceeding brought against Buyer, insofar as such claim, suit or proceeding is based on an allegation that products manufactured and supplied by EPS to Buyer directly infringe any United States, Canadian, Japanese or European Union member country patent, copyright, or trade secret; provided EPS is (i) promptly informed and furnished a copy of such claim, suit, or proceeding, (ii) given all evidence in Buyer's possession, custody or control, (iii) given reasonable assistance in and sole control of the defense thereof and all negotiations for its settlement or compromise. Buyer hereby agrees to make available to EPS the benefit of any defense available to Buyer to any infringement allegation hereunder, including, but not limited to, any license or option to license or sub-license any intellectual property right that is the subject of such infringement allegation.
9.2 In the event of an allegation for which EPS is obligated to defend Buyer pursuant to clause 9.1, EPS may, but shall not be obligated to: (i) obtain a license that allows Buyer to continue the use of the products, (ii) replace or modify the products so as to be non-infringing, but in a manner that does not materially affect the functionality of the products, or (iii) if neither (i) nor (ii) is available to EPS at a commercially reasonable expense, then EPS may refund to Buyer the purchase price and the transportation costs of such products and prospectively cease to indemnify Buyer with regard to such products without being in breach of this contract. If EPS elects to provide either of the options set forth in clauses (1) and (2) above, EPS' indemnity obligation pursuant to clause 9.1 shall be entirely fulfilled as to that individual claim, except for any damages, liabilities, or costs (excluding consequential and exemplary damages) incurred by Buyer prior to EPS taking such action. If EPS elects the option set forth in clause (3) above, EPS' indemnity obligation under this contract shall be entirely fulfilled, regardless of any additional claims. Also, if EPS elects the option set forth in clause (3) above, Buyer shall return to EPS any and all products remaining in Buyer's possession, custody or control.
9.3 EPS shall have no liability for any costs, losses or damages resulting from Buyer's willful acts, or any settlement or compromise incurred or made by Buyer without EPS' prior written consent. EPS shall have no obligation to defend and no liability for any costs, losses or damages, to the extent that an infringement allegation is based upon: (i) Buyer's use of the products in combination with any other product, software or equipment; (ii) Buyer's use of the products in a manner or for an application other than for which they were designed or intended, regardless of whether EPS was aware of or had been notified of such use; (iii) Buyer's use of the products in a manufacturing or other process; (iv) Buyer's modifications to the products; (v) EPS' compliance with Buyer's particular design, instructions or specifications; or (vi) EPS' compliance with any industry or proprietary standard or Buyer's use of the products to enable implementation of any industry or proprietary standard (such claims - i.e. those set forth in (i) through (vi) above - are individually and collectively referred to herein as "Other Claims").
9.4 Buyer shall indemnify and hold EPS harmless against any damages, liabilities or costs finally awarded against EPS or agreed to by Buyer as settlement or compromise, and will defend any claim, suit or proceeding brought against EPS insofar as such claim, suit or proceeding is based on an allegation arising from Other Claims.
9.5 THE FOREGOING STATES THE SOLE LIABILITY OF THE PARTIES FOR INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN REGARD THERETO. BUYER UNDERSTANDS AND AGREES THAT THE FOREGOING INTELLECTUAL PROPERTY INDEMNIFICATION TERMS ARE ESSENTIAL ELEMENTS OF THIS CONTRACT, AND THAT IN THE ABSENCE OF SUCH TERMS, THE MATERIAL AND ECONOMIC TERMS OF THIS CONTRACT WOULD BE SUBSTANTIALLY DIFFERENT.
10. Limitations and Damages Disclaimer:
10.1 General Limitations: IN NO EVENT SHALL EPS BE LIABLE FOR ANY SPECIAL, COLLATERAL, INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS CONTRACT OR THE USE OF THE GOODS PROVIDED HEREUNDER, REGARDLESS OF WHETHER EPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, COST OF REMOVAL OR REINSTALLATION, ANCILLARY COSTS TO THE PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, RETESTING, OUTSIDE COMPUTER TIME, LABOR COSTS, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, OR TRAVEL. NO CLAIM, SUIT OR ACTION SHALL BE BROUGHT AGAINST EPS MORE THAN ONE YEAR AFTER THE RELATED CAUSE OF ACTION HAS OCCURRED.
10.2 Specific Limitations: IN NO EVENT SHALL EPS' AGGREGATE LIABILITY FROM ANY WARRANTY, INDEMNITY, OR OTHER OBLIGATION ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT, OR ANY USE OF ANY EPS PRODUCT PROVIDED HEREUNDER, EXCEED THE TOTAL AMOUNT PAID TO EPS FOR THE PARTICULAR UNITS SOLD UNDER THIS CONTRACT WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED. THE EXISTENCE OF MORE THAN ONE CLAIM AGAINST THE PARTICULAR UNITS SOLD TO BUYER UNDER THIS CONTRACT SHALL NOT ENLARGE OR EXTEND THIS LIMIT.
10.3 BUYER UNDERSTANDS AND AGREES THAT THE FOREGOING LIABILITY LIMITATIONS ARE ESSENTIAL ELEMENTS OF THIS CONTRACT AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE MATERIAL AND ECONOMIC TERMS OF THIS CONTRACT WOULD BE SUBSTANTIALLY DIFFERENT.
10.4 ALL SALES ARE SUBJECT TO THE EPS' TERMS AND CONDITIONS AND EPS SHALL NOT BE BOUND BY ANY TERM OR CONDITION CONTAINED IN ANY OF BUYER'S PURCHASE ORDERS, FORMS OR OTHER DOCUMENTS. IN NO EVENT SHALL EPS BE LIABLE FOR ANY LOST PROFITS, LOST SALES AND/OR ACTUAL, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES INCURRED BY BUYER OR BUYER'S CUSTOMERS.
11. Cancellations and Rescheduling: Any cancellation or rescheduling of product by Buyer less than sixty (60) days before EPS' estimated shipping date for such product may result in a charge to Buyer. Such charge, if any, shall be reasonably determined by EPS based on factors such as whether the product was manufactured specifically for Buyer, EPS' ability to change its production schedule within the period of notice provided by Buyer, whether EPS acquired or allocated particular supplies or equipment to meet Buyer's order and such other factors as reasonably determined by EPS. Orders may be cancelled or rescheduled by Buyer more than sixty (60) days before EPS' estimated shipping date for such product at Buyer's discretion and without charge.
12. Non-waiver of Default: In the event of any default by Buyer, EPS may decline to make further shipments. If EPS elects to continue to make shipments, EPS' action shall not constitute a waiver of any such default or affect EPS' legal remedies for any such default.
13. Return Policy: Before returning any item to Elite Power Solutions (EPS), Buyer must use “Contact Us” web link on EPS website to communicate to EPS prior to shipping, or contact EPS by Phone or Email to receive an RMA (Return Merchandize Authorization) number. This number is used to track the returned items.
NO REFUND WILL BE GIVEN FOR ANY ITEMS RECEIVED THAT DO NOT HAVE AN "RMA" NUMBER.
Items must be returned within 30 days from the delivery date. All returned items will be subject to a 15% restocking fee and must be returned new and unused in their original packaging. Shipping charges are non-refundable. Cancelled orders that have been processed are subject to a 10% cancellation fee. If Buyer wishes to exchange an item purchased, EPS will issue a store credit for the full purchase price (not including shipping) and apply this credit to the replacement item(s) after receiving the shipment. If an item is being returned due to the wrong item being shipped, EPS will either refund Buyer’s item or offer a store credit. EPS will also waive the 15% restocking fee. If Buyer has a defective item, EPS may direct Buyer to send purchased product back to the manufacturer. Please do not send the item back to EPS unless Buyer obtains an RMA number and are instructed to do so.
14. Governing Law: This contract shall be governed by and interpreted in accordance with the laws of the State of Arizona, without reference to conflict-of-laws principles. If for any reason a court of competent jurisdiction finds any provision of this contract to be unenforceable, that provision will be enforced to the maximum extent possible to effectuate the intent of the parties, and the remainder of this contract will continue in full force and effect. This contract shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Buyer agrees that non-exclusive jurisdiction for any dispute arising out of or relating to this contract lies within courts located in the State of Arizona and consents to venue in Maricopa County, Arizona. Notwithstanding the foregoing, any judgment may be enforced in any United States or foreign court, and may seek injunctive relief in any United States or foreign court.
15. Export Control: Buyer agrees to obtain any necessary export license or other documentation prior to the exportation or re-exportation of any product, technical data, software or software source code acquired from under this contract or any direct product of such technical data, software or software source code. Buyer agrees that it is Buyer's responsibility to comply with the Export Administration Regulations of the U.S. Department of Commerce ("EAR").
16. U.S. Government Contracts: If the products are to be used in a U.S. Government contract or subcontract, those mandatory clauses, except as noted below, of the applicable U.S. Government procurement regulations shall be incorporated by reference. Unless otherwise agreed upon in writing, certified cost or pricing data will not be provided and Cost Accounting Standards, Defective Pricing, and Audit requirements will not apply.
17. Assignment: This contract shall not be assignable by Buyer without ' prior written consent. Any unauthorized assignment shall be null and void.
18. Entire Agreement: This contract constitutes the entire agreement between the parties relating to the sale of the products and supersedes all previous communications, representations, or agreements, either oral or written, with respect to the subject matter hereof. No prior representations or statements relating to the sale of the products made by any representative, which are not stated herein, shall be binding on. No addition to or modification of any provision of this contract shall be binding upon unless made in writing and signed by a duly authorized representative. No course of dealing or trade usage or course of performance shall be relevant to explain or supplement any term in this contract. These terms and conditions shall prevail notwithstanding any different, conflicting or additional terms and conditions that may appear on any purchase order or other writing not expressly incorporated herein, including but not limited to data sheets, application notes and purchase order acknowledgements. The section headings contained in this contract are for reference purposes only and shall not affect in any way the meaning or interpretation of this contract.
This document was last updated on June 8th, 2019.