Warranty Requirements Appendix

1. WARRANTY REQUIREMENTS FOR ETHIUM ® LITHIUM-ION BATTERIES

1.1 Buyer Responsibilities

Buyer is responsible to prevent all forms of misuse, abuse, accident or neglect of its Ethium® battery product (collectively, “Misuse”), including without limitation all Identified Forms of Misuse referenced below, and to make sure that the battery product (“Battery”) is properly used, charged and maintained, including without limitation use, care and maintenance in full compliance with the current published operating manual and all other Instructions applicable to the Battery. Buyer has been informed that the Battery may malfunction or be degraded if it is subjected to any of the following, any and each of which are hereby deemed to be a form of misuse of the Battery (collectively, “Identified Forms of Misuse”):

  • an impact force or shock greater than any limits set forth or referenced in Seller’s specifications or Instructions for the Battery;
  • puncture or other event associated with penetrating a Battery such that electrical circuitry or components are compromised or the battery cells are physically damaged;
  • any changes made to the software or electrical hardware of the Battery without the express written consent of the Seller;
  • exposure of the Battery to vibrations, temperatures or other environmental conditions outside any limits or permissible levels or ranges referenced in any of Seller’s specifications or Instructions for the Battery;
  • subjecting the Battery to a charge or discharge current greater than the maximum stated in Seller’s specifications or Instructions for the Battery;
  • replacement of Power Connectors with any power connectors not approved by Seller;
  • connecting a Battery to any power connector that has missing or damaged electrical insulation or that includes cables with missing or damaged insulation or that are otherwise damaged, or any charging, discharging or otherwise operating Battery having damaged cables or cable insulation;
  • “hot swapping” of power connectors or any other use of power connectors that are evidently not completely and properly inserted prior to use or that are inserted or removed from their mating connector while powered, which may result in elevated heat and/or elevated resistance;
  • use of the Battery with a charger other than one approved by Seller;
  • charging or discharging of a Battery when any of its internal temperatures are less than eighteen degrees Celsius (18⁰C) or greater than thirty-two degrees Celsius (32⁰C); or 
  • charging or attempting to charge a Battery with an overall charge rate exceeding 1C or with a charge current greater than three-hundred-twenty (320) amps per Power Connector.

Buyer must take all necessary precautions to protect the Battery from and against, and to prevent, any accident, misuse, abuse or neglect, including any and all such Identified Forms of Misuse.

Buyer is exclusively responsible to determine whether the Battery is fit and suitable for Buyer’s particular uses and applications, and to determine if Buyer should employ additional safeguards in order to minimize or eliminate risks relating to such uses and applications of the Battery.

1.2 Warranty Period

The “Warranty Period” for a Battery, excluding Power Connectors, is the shorter of: (a) eight years from Delivery; or (b) the period of time from Delivery until the Battery has experienced four-thousand Cycles (as defined below). Notwithstanding, even if Seller’s specifications or Instructions for the Battery reflect greater capacity retention, each Battery is warranted to deliver at least eighty percent of its capacity (as determined by the Battery’s user interface software) throughout the Warranty Period. For Power Connectors and all components other than Batteries, the “Warranty Period” is limited to one year from corresponding Delivery. Replacement of a Battery’s components does not extend its Warranty Period.

1.3 Warranty Validation Procedure

For a Battery suspected of having a Defect that Buyer believes is Defective, Buyer will be provided a Return Material Authorization number (“RMA”) for return to Seller. For a returned Battery to be accepted by Seller, the returned Battery must have an RMA, must be clearly identified as “RETURNED MATERIAL”, and must be accompanied by the in-service date for the Battery as well as a clear description of the observed basis for believing it is Defective. Buyer will be advised of any applicable evaluation fees. Although Buyer shall initially pay for the shipping charges for RMA returns, Seller shall reimburse or credit Buyer for standard freight shipping charges if the Battery returned is determined to be Defective by Seller. Buyer agrees to accept Seller’s reasonable determinations of whether a Battery is considered Defective or whether the Battery or a particular Defect is not covered under this 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.

1.4 Warranty Remedies & Limitations

Any claim of Defect must be handled and verified according to procedures referenced herein, and there shall be no remedies available under this Warranty unless Buyer follows such procedures. There shall be no Seller obligation to reimburse or otherwise pay for any other expenses, such as (without limitation) labor expenses, travel expenses, or administrative expenses, that might be incurred by Buyer or its customers in the course of remedying a Defect. For any Battery determined under such procedures to be Defective, Seller shall do one of the following as Buyer’s sole, final and exclusive remedy:

  • provide a replacement or an alternative with substantially the same form, fit and function;
  • at Seller’ discretion, reasonably repair or commission authorized others to reasonably repair the Battery; or
  • refund or credit a pro-rated portion of the corresponding purchase price paid to Seller by Buyer, as calculated based on either the remaining Warranty Period for the Battery (defined as percentage of time remaining divided by Warranty Period) or the number of Cycles remaining of the original warranty (defined as percentage of Cycles remaining divided by total number of Cycles Warrantied), whichever percentage is lower.
 

In the event Seller provides a replacement Battery or an alternative product (each, a “Replacement”), this Warranty will still apply to the Replacement provided that the replacement is performed without error by a Seller-authorized technician and provided that components installed during the replacement are new unused components when installed, and the Warranty Period for the Replacement will thereafter be the shorter of (a) the length of time remaining of the original Warranty Period for the original Battery for which the Replacement was provided or (b) the period of time until the Battery has experienced the number of Cycles remaining of the four-thousand Cycles of the original Battery for which the Replacement was provided, whichever comes first with regard to the Replacement. Seller’s liability for any Battery shall in no event ever exceed the price paid by Buyer for the Battery that gives rise to liability. In any case, Seller liability shall be limited in proportion to the degree of contribution to such damages attributable to a Defect. If Seller reasonably determines that Cycle counts have been altered or corrupted, or that the Cycle count cannot be accessed or relied upon as accurate, Seller will not have any obligations under this Warranty, such that any warranty remedies will be at the sole discretion of Seller. Failure of Buyer to notify Seller in writing of a Defect within six months after a related malfunction or failure or other notice to Buyer waives any right to remedy under this Warranty. For a returned Battery determined to be conforming or not Defective, Seller may return such Battery to Buyer via freight collect.

SELLER SHALL HAVE NO LIABILITY FOR, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR AFFIRMATION OF FACT OTHER THAN AS SET FORTH IN THIS WARRANTY, INCLUDING, WITHOUT LIMITATION: IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; ANY WARRANTY OR AFFIRMATION OF FACT RELATED TO MISUSE OR IMPROPER SELECTION, RECOMMENDATION, OR MISAPPLICATION OF A PRODUCT; AND ANY WARRANTY OR AFFIRMATION THAT PROVIDED CATALOGS, LITERATURE OR WEBSITES ACCURATELY ILLUSTRATE AND DESCRIBE THE PRODUCT.

1.5 Further Limitations, Exceptions And Exclusions From Coverage

Seller hereby disclaims and has no obligation to provide a remedy for any and all Warranty Exceptions and Excluded Liabilities, as provided below and which may be updated from time to time by Seller. This Warranty does not cover services. This Warranty shall not apply and shall be null and void with respect to, and Seller hereby disclaims and shall have no obligation to repair or replace or provide any other remedy to Buyer for any of the following Coverage Exceptions or any Excluded Liabilities for:

  • any Battery that has had the serial number, model number or any other identification markings removed or rendered illegible;
  • any products made by third parties that are merely resold by Seller;
  • any third party parts or systems used with Seller’s Battery;
  • any Battery that has been subject to Misuse, to include Replacements performed by any technician who is not Seller-authorized or with nonconforming components; and
  • any Battery that Seller determines has malfunctioned, been damaged, is Defective, or otherwise has a defect, likely due directly or indirectly, in whole or in part, to any one or more of the following:

1) normal wear and tear
2) any use of the Battery outside of specified ranges and conditions, including charging or discharging rates and temperatures;
3) any modification or alteration of the Battery; or
4) any Force Majeure event or 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 Seller’s reasonable control, including chemical, electro-mechanical, electrical influences or other environmental or operational conditions not fully disclosed in writing to Seller prior to determining a Battery’s suitability for Buyer’s application.

For the purposes of determining whether particular exceptions from coverage apply with respect to any particular Battery, data retained or transmitted by the software of the Battery shall be treated as irrefutable evidence of the conditions to which the Battery has been subjected. Except for the remedies as expressly provided in this Warranty, Buyer waives any and all rights to seek any other claims, damages or other legal or equitable remedies arising from any Defective Battery under any and all causes of action, whether statutory, at common law or in equity, including but not limited to any claims based on negligence and/or strict liability. If this Warranty is voided as to any Battery, Seller is immediately and forever excluded from any and all liabilities associated with such Battery.

1.6 IN NO EVENT SHALL SELLER OR ITS PRINCIPALS, AGENTS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS, VENDORS OR AFFILIATES, BE LIABLE TO BUYER OR ANY THIRD PARTY FOR INJURY OR DAMAGE TO ANY PERSON OR PROPERTY WHATSOEVER, NOR FOR DAMAGE TO ANY EQUIPMENT ON OR IN WHICH BUYER INSTALLS THE PRODUCT OR WITH WHICH THE PRODUCT IS USED, AND SELLER SHALL IN NO EVENT BE LIABLE FOR ANY OTHER FORM OF INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR RESULTING FROM ANY DEFECT, INCLUDING WITHOUT LIMITATION: LOST PROFITS, REVENUE OR BUSINESS; LOSS OF USE OR DAMAGE TO ASSOCIATED EQUIPMENT; LOSS OF TIME OR OPPORTUNITY; LOSS OF INFORMATION, DATA, SOFTWARE OR APPLICATIONS; ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

1.7 Seller’s liability for any Battery shall in no event ever exceed the price paid by Buyer for the Battery that gives rise to liability. In any case, Seller liability shall be limited in proportion to the degree of contribution to such damages attributable to a Defect. SELLER SHALL HAVE NO LIABILITY FOR, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR AFFIRMATION OF FACT OTHER THAN AS SET FORTH IN THIS WARRANTY, INCLUDING, WITHOUT LIMITATION: IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; ANY WARRANTY OR AFFIRMATION OF FACT RELATED TO MISUSE OR IMPROPER SELECTION, RECOMMENDATION, OR MISAPPLICATION OF A PRODUCT; AND ANY WARRANTY OR AFFIRMATION THAT PROVIDED CATALOGS, LITERATURE OR WEBSITES ACCURATELY ILLUSTRATE AND DESCRIBE THE PRODUCT.

1.8 Additional Definitions

1.8.1 “Cycles” is defined as the number of 80% equivalent discharge and charge cycles that have been experienced by the Battery, as counted by the Battery’s user interface software. Each such cycle is determined and counted by the Battery’s user interface software based on the equivalent of an eighty percent (80%) discharge and charge cycle correlated to the Battery’s nameplate capacity, from at or near one hundred percent (100%) State of Charge (“SOC”) to at or near twenty percent (20%) SOC and back to at or near one-hundred percent (100%) SOC. The Battery’s user interface software is intended to mathematically combine partial discharge and charge cycles together until an equivalent of a full cycle of eighty percent (80%) discharge and charge is completed, and the software automatically increases the rate of incrementation of Cycles to account for conditions that are known to cause accelerated degradation if the software determines that such conditions have occurred. That user interface software is also adapted to account for capacity variability over time such that each counted Cycle represents a virtual cycle corresponding to the Battery’s nameplate capacity.

1.8.2 “Power Connectors” are defined as components that (i) principally function as the high voltage electrical connectors of or for the Battery, that (ii) interface between the electric cells of a Battery and an electrical charger or between the Battery and the application with which the Battery is used, and that also (iii) are connected to the Battery when provided by Seller to Buyer, consistent with Seller’s specifications for the Battery.

1.8.3 “State of Charge” is defined as the state of charge of a Battery as determined by the Battery’s user interface software.