Terms of Purchase

EControls, LLC doing business as EControls and hereinafter will be referred to as “EControls”.

  1. Governing Provision: No term or condition on PURCHASER’s purchase order or any other instrument, agreement or understanding shall be binding upon EControls unless agreed to in writing by EControls. In the event of any inconsistency or conflict between EControls terms and conditions and PURCHASER’s purchase order or any other instrument, agreement or understanding, EControls rejects such inconsistent or conflicting terms or conditions and EControls Standard Terms & Conditions shall govern and control.
  2. Precious Metals: Prices are based on “spot buy” costing from the source www.platinum.matthey.com (New York at 9:30AM) on the day of the quotation.
  3. Cost of Cable: Not Applicable.
  4. Standard Production Lead Time: 12 weeks for standard PPAP timing and 8 weeks beyond, from acceptance of PURCHASER’s purchase order by EControls.
  5. Catalyst Lead Time: 16 weeks from acceptance of PURCHASER’s purchase order by EControls.
  6. Minimum Order Quantity: EControls will require a purchase order for the minimum order quantity and integer multiples thereof. Orders smaller than the Minimum Order Quantity will be subject to 2x the price.
  7. Quotation Validity: This quote is valid for 30 calendar days from the date of issue.
  8. Currency: Prices are quoted in United States dollars and all payments are to be in United States dollars.
  9. Exchange Rate: Not Applicable.
  10. Shipping: EX-Works San Antonio, Texas USA, with all risk of loss and damage to goods passing to PURCHASER upon delivery to carrier.
  11. Payment Terms: 30 days from Invoice Date. If payment is late, EControls has the right to hold future shipments until late payments are submitted and accepted by EControls. If payments are late EControls reserves the right to require C.O.D. or advanced payment for future shipments.
  12. Clerical Errors: Clerical errors will be a basis for nullifying prices, terms, conditions, etc. upon written notification to the PURCHASER.
  13. Tooling: Not Applicable.
  14. Engineering/Development/Certification Charges (together NRE): Payment to EControls for all NRE shall be due 30 days from the EControls NRE invoice and shall be scheduled to be invoiced for; one half of the NRE prior to commencement of development effort; and one half of the NRE at completion of development effort. Material and equipment NRE is due prior to commencement of work.
  15. Annual Requirements: PURCHASER must request shipment of the entire minimum annual quantity of goods within twelve months from the date of the first purchase order otherwise EControls reserves the right to adjust the price per unit. If the minimum order quantity is equal to the minimum annual quantity, the minimum order quantity takes precedence.
  16. Taxes: The amount of any and all applicable taxes shall be added to the price and paid by PURCHASER, in lieu thereof, PURCHASER may provide EControls with tax exemption certificates acceptable to the taxing authority.
  17. Language: Contracts are written in English; another language may be included. When a contract is written in two languages, the English language will have authority. Both EControls and PURCHASER agree to use appropriate third party arbitration for any language conflicts that may arise.
  18. Prices: All prices are subject to adjustment by EControls for changes to volume forecasts, economics, shipping/taxes/duties (if EControls paid) or exchanges rate unless other price conditions are agreed upon by both EControls and PURCHASER in writing.
  19. Export Compliance: PURCHASER agrees not to ship, transfer or export EControls Products into any country or use EControls Products in a manner prohibited by the United States Export Administration Act, Arms Export Control Act or prohibited by any export laws, restrictions or regulations administered by United States governmental agencies, including the Departments of Commerce (Bureau of Industry and Security), Homeland Security, State and Treasury.
  20. Applicable Law: This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Texas, United States of America in the English language. Venue for the enforcement of this Agreement shall be in the courts of Bexar County, Texas, United States of America.
  21. Force Majeure: EControls shall not be liable for any delay in production or delivery of goods if such is due to a force majeure, that shall include among other things, the inability or refusal by third party suppliers to provide parts or services or other information required for the performance by EControls under this purchase order, government embargoes, blockades, seizure of assets, delays or refusal to grant an export license or suspension thereof or any other acts of any government that would limit the ability for contract performance, fire, earthquake, flood, severe weather conditions or any other acts of God, quarantines, labor strikes or lockouts, civil disobedience, riots, armed conflict, terrorism or war, or any other cause whatsoever beyond EControls’ reasonable control. If the force majeure continues longer than 120 days either EControls or PURCHASER may terminate this purchase order and PURCHASER will pay EControls for work performed prior to termination and reimburse all reasonable expenses incurred by EControls as a result of the termination. In the event of delays caused by the force majeure or PURCHASER, the date of delivery shall be extended by the period of time EControls is actually delayed or as mutually agreed and documented. PURCHASER’s sole remedy against EControls shall be the option to cancel its purchase order and PURCHASER will pay EControls for work performed prior to termination and reimburse all reasonable expenses incurred by EControls as a result of the termination.
  22. Cancellation: PURCHASER may for any reason terminate an order in whole or in part upon written notice to EControls, which shall be no less than 60 days or the Lead Time, whichever is longer, in advance of the requested delivery date. PURCHASER shall be liable for termination charges, including but not limited to, price adjustment based on quantity of product delivered, all costs incurred and committed for PURCHASER’s cancelled order and an allowance for reasonable prorated expenses, inventory purchased and associated inventory carrying costs for material on hand in support of Purchasers business extending up to twelve months and anticipated profits.
  23. Cancellation of Engineering Services / Engine Developments / Engine Certification Development: EControls reserves the right to terminate engineering services, engine developments or engine certification development activities at EControls’ sole discretion. At the time of termination, payments made to EControls by the PURCHASER for these activities will be refunded, excluding documented costs incurred by EControls.
  24. Changes: If during the life of this product the PURCHASER makes changes within the general scope of the purchase order, in any of the following: (1) engineering change to meet newly or previously unknown requirement(s); (2) drawings, designs or specifications; (3) method of shipment or packaging, EControls reserves the right to provide a new quotation that supersedes this document. PURCHASER agrees to work with EControls in good faith to promptly address this change, otherwise EControls reserves the right to cease shipment of product to the Purchaser.
  25. Intellectual Property: All intellectual property, trade secrets and know-how that are the property of EControls and owned by EControls remain so and are in no way transferred to PURCHASER as a result of entering agreements, supplying products, information, or know-how. Moreover, any improvements to EControls’ preexisting products or technology, and all associated intellectual property, shall be owned by EControls if created by or for EControls, irrespective of whether such improvements are made to adapt to PURCHASER’s environment or otherwise in response to PURCHASER’s needs or requests.
  26. Embedded Software:  With respect to any software copies incorporated in or forming a part of the Products when delivered by EControls hereunder, as well as any software copies that are introduced into or made a part of the Products after delivery in the course of upgrades, updates, maintenance or repair conducted by or for EControls, including any related documentation provided with the Products, (collectively, “Embedded Software”) EControls and PURCHASER intend and agree that, incidental to the sale of those Products, such Embedded Software is being licensed and not sold by EControls.  More particularly, incidental to the sale under this Agreement of any particular item of Products that incorporates or comprises Embedded Software, EControls grants PURCHASER a non-exclusive royalty-free perpetual license to use those individual copies of such Embedded Software, only in form provided by EControls, in the course of using that item of Products for its intended uses, for the benefit of PURCHASER and PURCHASER’s direct and indirect customers who legally acquire or use such item of Products.  PURCHASER and its direct and indirect customers shall not sell, assign, transfer, or copy the Embedded Software separate and apart from the item of Products in which it is incorporated or forms a part of, but instead may enjoy and sublicense the right to use the Embedded Software to the same extent as provided in the immediately preceding sentence.  In no event shall PURCHASER cause or permit any copying, modification, reverse engineering, disassembly, decompilation, or creation of derivative works of Embedded Software, in whole or in part, without prior written consent of EControls, except to the extent modifications or derivatives may be created during the course of operation of the item of goods as intended, and in no event shall PURCHASER delete or modify any copyright notices or other proprietary notices included in, displayed by, or otherwise associated with the Embedded Software or any related documentation.  Accordingly, to the extent terms and conditions of this Agreement or of purchase orders, releases or ancillary transactions pursuant this Agreement pertain to any or all such Embedded Software, the words “purchase”, “sell” or similar or derivative words are understood and agreed to mean “license” and that the word “PURCHASER” or similar or derivative words are understood and agreed to mean “licensee”.  Notwithstanding anything to the contrary contained herein, EControls shall be the licensor of any and all such Embedded Software and shall retain any and all of its rights and interests in and to Embedded Software provided hereunder despite the delivery of such Embedded Software together with or for Products purchased under this Agreement.  PURCHASER shall promptly report to EControls any actual or suspected violation of this Paragraph and shall take further steps as may reasonably be requested by EControls to prevent or remedy any such violation.  PURCHASER’s obligations under this Section shall survive expiration or termination of this Agreement, and each license granted in relation to Embedded Software under this Agreement shall remain in effect until (i) a return of the corresponding item of Products is made pursuant this Agreement, or (ii) EControls terminates the license by reason of PURCHASER’s material breach of any of the terms or conditions of this Section and then its failure to cure such breach to the extent cure is reasonably achievable within a reasonable time.
  27. Warranty Periods for EControls Manufactured Product (except catalysts): The “Warranty Period” for any individual Product shall be the shorter of: three (3) years from delivery of the Product by EControls to PURCHASER or its carrier or other representative (“Delivery Date”), or two (2) years from the first date that PURCHASER or its subcontractors or other representatives install and operate any aspect of the Product (the “Service Date”). If a Product’s Service Date cannot be reasonably determined for any reason, the Service Date shall be presumed to be ten (10) calendar days following the Delivery Date. Notwithstanding the foregoing, the Warranty Period for any components that are substantially composed of rubber or rubber-like materials shall be limited to one year from the corresponding Delivery Date.
  28. Warranty for EControls Purchased Product: With regard to any parts made by a third party and supplied as a pass-through part by EControls, EControls does not make any warranties as to such parts.  However, to the extent that the third party manufacturer’s warranty is applicable to PURCHASER, the warranty terms will be as outlined in any Warranty provided by that third party manufacturer.
  29. Warranty for EControls Manufactured Product: For the duration of the Warranty Period (defined above), EControls warrants to PURCHASER that all products shipped (i) are to be free from title defects at the time of delivery by EControls, (ii) at the time of such delivery conform to EControls’ written specifications for the Product that have theretofore been provided by EControls to PURCHASER or mutually agreed in writing between PURCHASER and EControls (“Specifications”), and (iii) are free from material or workmanship defects if always operated under Normal Use and Normal Service (as such terms are defined further herein). For reference, any Product that fails to comply with the foregoing sentence shall be referred to herein as “Defective” and as having a “Defect.” This warranty (“Warranty”) is a limited warranty provided by EControls to each PURCHASER, is non-transferrable, and applies only with respect to products that have been manufactured by EControls and that are hereafter supplied by EControls to PURCHASER and fully paid for by PURCHASER (each, a “Product” and, collectively, “Products”). This Warranty is exclusive to PURCHASER and shall supersede all other warranties, whether express, implied or statutory, including, but not by way of limitation, any warranty of merchantability of fitness for any particular purpose. All other warranties or liabilities, expressed or implied, oral or statutory, including any warranty of merchantability or fitness for a particular purpose, are hereby disclaimed, terminated and waived as to PURCHASER, effective upon PURCHASER’s purchase of the Products from EControls. As with any monitoring or control systems, the purchase, installation and use of Products is NOT AN INSURANCE POLICY, and Normal Use and Normal Care are needed for long and faithful service. “Normal Use” shall mean the intended use of the Product for which it was designed by EControls, as may be evidenced by the corresponding Specifications and any instructions for use provided by EControls to PURCHASER (“Instructions”). “Normal Service” shall mean all necessary servicing as recommended, suggested or required in the Instructions or otherwise by EControls, by industry norms and standards, or by applicable laws and regulations.
  30. Warranty Claim & Service Procedure: Any Warranty claim by PURCHASER must be handled according to the following procedures, and there shall be no remedies available under the Warranty unless PURCHASER follows such procedures. Before returning any Product that PURCHASER believes is Defective, PURCHASER must provide to EControls details of the Defect and related circumstances, a complete description of the Product, details from the Model Number label attached to each Product, including Model Number, part number and date code, as well as the first Service Date for the Product. Then, assuming the Product and Defect are of the type that may be covered under the foregoing Warranty, PURCHASER will be provided a Return Material Authorization Number (RMA Number) for return to EControls. All Products returned with an RMA must be clearly identified as “RETURNED MATERIAL”, must be accompanied by the Service Date for the Product as well as the clear description of the observed Defect, and must be to the attention of the person identified by EControls when the RMA number is provided. Although PURCHASER shall initially pay for the shipping charges for RMA returns, EControls shall reimburse or credit PURCHASER for standard freight shipping charges if the Product returned is determined to be Defective by EControls. PURCHASER agrees to accept EControls’ reasonable determinations of whether a Product is considered Defective or whether the Product or a particular Defect is not covered under the foregoing Warranty. THE DELIVERY OF AN ALLEGEDLY DEFECTIVE PRODUCT NOT BEARING A VALID RMA NUMBER WILL BE REFUSED, AND THE SHIPMENT WILL BE RETURNED TO THE SENDER AT THE SENDER’S EXPENSE.
  31. Remedies for Warranty Claims & Limitations of Liability: For any Product that PURCHASER has returned to EControls by RMA during the Warranty Period, shipping costs prepaid, and for which EControls has reasonably determined that the Product is Defective under the terms of the foregoing Warranty, EControls shall do one of the following as PURCHASER’s sole and exclusive remedy: either (i) refund the corresponding purchase price paid to EControls by PURCHASER; (ii) reasonably repair the Product or commission authorized others to reasonably repair the Product; or (iii) provide a replacement Product or an alternative product with the same form, fit and function; at EControls’ discretion. ECONTROLS AND ITS AGENTS AND EMPLOYEES SHALL IN NO EVENT BE LIABLE FOR INJURY OR DAMAGE TO ANY PERSON OR PROPERTY WHATSOEVER, NOR FOR DAMAGE TO ANY EQUIPMENT ON OR IN WHICH CUSTOMER INSTALLS THE PRODUCT, AND ECONTROLS SHALL IN NO EVENT BE LIABLE FOR ANY OTHER FORM OF INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION LOST PROFITS OR REVENUES, LOSS OF BUSINESS, LOSS OF PRIVACY, LOSS OF USE, LOSS OF TIME OR INCONVENIENCE, LOSS OF INFORMATION, DATA, SOFTWARE OR APPLICATIONS OR OTHER FINANCIAL LOSS, ARISING OUT OF OR RESULTING FROM ANY PRODUCT DEFECT. EControls liability shall be limited in proportion to the degree of contribution to such damages attributable to a Defect of EControls' Defective Products. For all claims and liabilities arising directly or indirectly from Defective Products delivered by EControls during any period of twelve (12) consecutive calendar months, the total aggregate compensation or other consideration payable by EControls to PURCHASER, or its representatives, contractors or customers shall in no event exceed $500,000 (USD) (the “Liability Cap”). PURCHASER waives the right to seek claims, damages or other legal or equitable remedies against or from EControls, its principals, subcontractors, agents, vendors, suppliers and/or design professionals under any and all causes of action whether statutory, at common law or at equity, including but not limited to any claims based on implied warranties of fitness, reduction of the purchase price, negligence and/or strict liability. Under any circumstances where the Warranty is voided as to any Product(s), EControls is immediately and forever excluded from any and all liabilities associated with such Product(s). Failure of the PURCHASER to notify EControls in writing of a Defect within six months after a related malfunction or failure or other notice to PURCHASER waives any warranty claim identified prior to notifying EControls. The Warranty is limited. ECONTROLS SHALL HAVE NO LIABILITY FOR, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR AFFIRMATION OF FACT, EXPRESS OR IMPLIED, OTHER THAN AS SET FORTH IN THE WARRANTY STATEMENT, INCLUDING, WITHOUT LIMITATION (1) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (2) ANY WARRANTY OR AFFIRMATION OF FACT RELATED TO MISUSE, IMPROPER SELECTION, RECOMMENDATION, OR MISAPPLICATION OF ANY PRODUCT; AND (3) ANY WARRANTY OR AFFIRMATION OF FACT THAT THE CATALOGS, LITERATURE AND WEBSITES IT PROVIDES ACCURATELY ILLUSTRATE AND DESCRIBE PRODUCTS.
  32. Exceptions from Coverage: The foregoing Warranty does not cover any other expenses such as but not limited to labor, losses, travel or administration fees. The foregoing Warranty shall not apply and be null and void with respect to, and EControls shall have no obligation to repair or replace or provide any other remedy to PURCHASER for, any Product that: (A) has had the serial number, model number or any other identification markings removed or rendered illegible; or, in EControls’ reasonable judgment, (B) has malfunctioned, been damaged, or otherwise has a Defect due directly or indirectly to any one or more of the following: (i) normal wear and tear; (ii) accident, neglect, misuse, abuse, or improper handling, storage, operation, or maintenance; (iii) pollution, for example in the case of UEGOs or catalysts; (iv) any deviation from Normal Use or Normal Service, including exposure to pressures, temperatures or other environmental or operating conditions outside the limits of Normal Use, and including any other failure to continually provide a suitable operating environment (including necessary ventilation, electric power supply, protection from power surges, temperature and/or humidity); (v) any modifications or repairs to non-serviceable parts or subassemblies or that are otherwise inconsistent with the Specifications or Instructions or that have been made by persons or entities not authorized by EControls; (vi) any improper installation or failure to maintain environmental parameters; or (vii) any acts of God, wars, acts of a public enemy, acts of the governments of any state or political subdivision or any department or regulatory agency thereof or entity created thereby (whether or not valid), acts of any person engaged in subversive activity or sabotage, riots, fires, floods, explosions, or other catastrophes, epidemics or quarantine restrictions, strikes, lockouts or other labor stoppages, or any other cause beyond EControls reasonable control, including chemical, electro-mechanical, electrical influences or other environmental or operational conditions not fully disclosed to EControls prior to determining a Product’s Specifications or its suitability for meeting PURCHASER’s needs.
  33. Special Exceptions from Coverage for Catalysts: In addition, Warranty obligations shall not apply for any catalyst which is exposed to: a) halogen-containing compounds, b) poisoning or masking agents found on the catalyst which originate from the application or fuel such as but not limited to the engine, cooler, compressor, well, additives, etc., including but not limited to phosphorus, silicon, silicon compounds, sulfur, sulfur compounds, arsenic, and heavy metals such as lead or zinc. Additionally, Warranty obligations shall not apply if the engine does not use low phosphate engine oil that has an ash content of less than 0.5 wt. % that is designed for operation with a three-way catalyst.
  34. Arbitration: If arbitration or other legal proceedings are commenced to enforce rights relating to this Agreement or its subject matter, the party that substantially prevails in such proceedings shall be entitled to recover its reasonable attorneys’ fees, costs and expert witness expenses, irrespective of the rules and laws governing such proceedings.
  35. Assignment: Neither EControls nor PURCHASER shall be entitled to assign its rights or obligations hereunder without the other’s written consent, except that EControls may assign its obligations to its subsidiary or commonly controlled affiliate or together with substantially all the assets of its related business.
  36. Limitation of Liability: In no event shall EControls be liable to PURCHASER or any third party for incidental, consequential, punitive damages, or lost profits, or loss of use or damage to associated equipment resulting from any defect arising from any product. EControls liability under this contract for any damages to PURCHASER or any third party shall not exceed the purchase price for the product unless expressly documented in writing from EControls.